Bench Memos

Missouri Plan Update: Major Defeat for Trial Lawyers

Yesterday the Missouri House voted to approve a constitutional amendment that would make significant improvements to the Missouri Plan, the state’s method for selecting judges. (Also known by the propagandist misnomer “merit selection.”)  

Under the terms of the current Missouri Plan, governors must choose appellate and supreme court judges from a list sent to them by a seven-member nominating commission. That nominating commission consists of the Chief Justice, three lawyers chosen by the Missouri Bar, and three laypersons chosen by current and past governors.

The amendment, which must be approved by voters on the November ballot, would dilute the authority of a special interest (the Missouri Bar) and place substantially more responsibility in the hands of the governor, who is accountable for his decisions. Specifically, the governor would appoint four members to the commission (two upon election and two midway through his first term), and the Missouri Bar would retain its three commissioners.  

This structure is not perfect, but it does follow the principles articulated by the Framers of the U.S. Constitution. As I have written before: During the debates on the U.S. Constitution, James Madison proposed the appointment of judges by the president with the concurrence of the Senate. Madison believed “this would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.” Alexander Hamilton echoed that statement in Federalist 76, explaining that nomination by the chief executive was superior to nomination by a collective body because:

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.  He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. 

There will be no confirmation process in Missouri, but the voters themselves will have a check on the judicial branch in the form of a retention election, both one year after their appointment and then again after their first full term.  

In Part II I will explain why these changes are necessary, but let me summarize by saying that the Missouri Plan has become so thoroughly dominated by the Missouri Bar and Missouri Association of Trial Attorneys that one could argue that the state’s judges have become their agents. (I’m told many local judges were actively calling and lobbying legislators to vote against these reforms, so it sounds like my agency theory is true in more ways than one.) The modest changes that were approved by the legislature should go a long way toward resolving that problem and giving the people of Missouri more of a say over who serves on their courts.

Congratulations to the leaders of the Missouri Senate and the Missouri House for getting the job done, to Senator Jim Lembke and Representative Stan Cox for sponsoring the legislation, and to all of the legislators and advocates who supported reform. Your efforts could lead to positive and historic changes to the third branch of government.  


The Latest