Nonpartisan Court Plan has faced long history of scrutiny

JEFFERSON CITY - For decades, Missouri's nonpartisan court plan was held out as a national model for removing judicial selections from partisan politics.

But during the administration of Gov. Matt Blunt, it's come under attack and has become an issue in the 2008 campaign for governor.

The Missouri Nonpartisan Court Plan was approved in 1940 as a means to remove the selection of judges from partisan politics. This procedure is used to appoint Missouri Supreme Court justices, as well as judges of trial courts in Kansas City and St. Louis and the state's three appeals courts. The remaining state judges in the state are elected on partisan ballots.

Under the Missouri Plan, a nominating of judges, lawyers and lay persons select three nominees for a judicial vacancy. The governor is restricted to naming one of the three. If he refuses, the nominating commission picks the judge.

Although cited across the country, the approach came under attack in 2007 by a conservative activist organization, the Federalist Society which launched a campaign to do away with the system. Critics charged the nonpartisan court plan restricted the governor's choices for naming judges, gave the governor too little a voice in naming the nominating commissions and gave the legal profession too strong a voice in picking judges.

In the legislature, the fight against the plan was led by Rep. James Lembke, R-St. Louis County, who filed a proposal in 2007 to eliminate the nominating commissions. Under his proposal, the governor could nominate whomever he chose for a nonpartisan judgeship, but the nomination would be subject to Senate confirmation. Lembke's proposal cleared a House committee in 2007, but went no further in the legislative process.

Other proposals have been offered to expand the nominating commission or the number of nominees submitted to the governor by the nominating commission.

Last summer, Blunt expressed disdain when faced with three nominees for the Missouri Supreme Court. He questioned the merits and transparency of the Missouri Plan, and requested specific information about the nominees' selection process by the commission. The governor eventually appointed Patricia Breckenridge, but in his endorsement, called her "the best candidate of the three candidates submitted to me."

In September, the Republican candidate for governor, Kenny Hulshof, offered his own proposal -- to replace the nominating commission's three attorneys with one trial judge and two appeals court judges. All would be randomly chosen.

Hulshof's most significant amendment would Hulshof would also increase the number of nominees submitted to the governor from three nominees to five, and would give the governor two opportunities to reject the entire panel of nominees. Should this happen, the governor could then appoint his or her own candidate, whom the Senate would have to confirm. Under the current process, the commission makes the final appointment if the governor does not choose any of the three nominees.

The Missouri Bar Association also denounced Hulshof's proposal.

"Anyone who would try to politicize the justice system that is fair and impartial is doing grave danger and injustice to the citizens of Missouri," said Keith Burkes, executive director of the Bar Association, in a previous interview.

Candidate Positions on the Nonpartisan Court Plan

Candidates for Governor

Kenny Hulshof, Republican: "A plan that was intended to be nonpartisan has become very partisan," said Hulshof's spokesman, Scott Baker. "What he is proposing is a way to balance the scales once again, and ensure that a small sector of attorneys do not have complete control over the process, as we see today."

Baker added, "Open up the process, and remove special interests, and expand the number of nominees, and allow other groups to be part of the process."

Hulshof thinks the Appellate Judicial Commission has become too politically biased and would modify the Missouri Plan. Hulshof proposes removing special interests from the commission that nominates judges for the Supreme Court, replacing the Chief Justice with a retired Supreme Court Judge, and giving the governor the power to veto up to two slates of nominees.

Jay Nixon, Democrat: Nixon, had his own criticisms of the Missouri Plan but defended it against Hulshof's proposal.

"He believes it needs to be more transparent, but ultimately we must protect the Missouri Nonpartisan Court Plan," said Nixon's spokesman, Oren Shur, in a previous interview. "It serves as a model to states across the nation, as an example of how to keep politics out of the judicial nominating process."

Shur said the state needs more transparency in the judicial selection process, but must also protect the Nonpartisan Court Plan and keep politics out.

Andy Finkenstadt, Libertarian: Finkenstadt said he saw no reason to change the state's current system.
Gregory Thompson, Constitution: Thompson believes lawyers have too much input on the selection of judges and that citizens should have the power to make those decisions.

Candidates for Lieutenant Governor

Peter Kinder, Republican: Kinder said, in general, he supports Missouri's selection process for Supreme Court judges, a process he called "a huge step forward ... over the way we selected judges, which was political bosses picking judges before it was passed in 1940."
But, Kinder said, he thinks the the system can be "tweaked." In a September column in the Southeast Missourian, Kinder wrote: "A small number of lawyers from the personal-injury bar have a virtual monopoly on choosing judges."
Sam Page, Democrat: "The Missouri (Non-partisan Court) Plan was established to eliminate the influence of politics in the selection of judges," Page said. "The plan has been copied by at least 35 other states, and we should continue to use it."
In 2008 in the House, Page voted against a proposed constitutional amendment that would have reduced the role of lawyers in the nonpartisan nominating process.

Teddy Fleck, Libertarian: Fleck said he does not favor a non-partisan court plan because, he said, "I'd rather know what political party he belongs to."

James Rensing, Constitution: Rensing said the appointment process for Missouri judges should be revised, but he did not expand on the details.

Candidates for Secretary of State

Mitch Hubbard, Republican: The current court system plan needs to be changed, according to Hubbard, since it is not non-partisan. While the judicial commission as a whole is non-partisan, individuals are not.

He said that many activist judges are being presented to the governor and it's not a true mix.

Robin Carnahan, Democrat: Was not available for comment.

Denise Neely, Constitution: The state chair for the Constitution Party wrote that Neely was not sure about whether the nonpartisan court system needed to be changed or how.

Candidates for State Treasurer

Brad Lager, Republican: Lager's campaign declined to comment on this issue.

Clint Zweifel, Democrat: He supports the Missouri Plan as it is, and he does not have any plans for changing the current system.

Candidates for Attorney General

Michael Gibbons, Republican: At a campaign debate, Gibbons said that while he supports the nonpartisan plan, he also said that improvements could be made. A campaign advisor said he wants to re-examine the plan to ensure it is still non-partisan, merit-based and transparent.

Chris Koster, Democrat: Koster does not believe the Missouri Nonpartisan Court Plan needs to be changed from its current format.

"The Missouri Nonpartisan Court Plan is a model for the country, and for a reason," said campaign spokesman Danny Kanner. "Senator Koster supports the Missouri Plan as it stands, and will continue to advocate an apolitical, nonpartisan judicial system."