Bench Memos

Missouri Plan Update Part II: Why Change?

In Part I I reported that the Missouri legislature has approved a constitutional amendment that, if approved by voters, would substantially improve Missouri’s method of choosing judges. I will now explain why those changes were vital to the integrity and independence of Missouri’s appellate courts.

The left-leaning Progressive advocates who came up with the Missouri Plan saw it as the surest way of giving the Bar control over judicial selection. Not surprisingly, such a structure benefits the special-interest group with the greatest incentive to dominate the Bar, and in Missouri it is trial lawyers. Justice O’Connor and her allies in various Soros-funded organizations have been campaigning across the country (mostly unsuccessfully) on the argument that the Missouri Plan is a non-political method for selecting judges.  

But the more the issue is studied, the more we learn that the Missouri Plan is by far the most deeply politicized method for selecting judges. And, unlike the federal method or elections, which provide for democratic accountability, the politics of the Missouri Plan happen behind closed doors and involve only a handful of unaccountable people.  

Who are those people?

In Missouri, they tend to be members of the Missouri Association of Trial Attorneys (MATA). MATA is also known as the organization most likely to challenge tort-reform laws or sue you if you happen to operate a profitable, job-creating business. In fact, eight out of the last ten Bar-members of the appellate nominating commission in Missouri have been members of MATA (list below). Five of those eight were on the Board of MATA, and another two served as the organization’s president.  

So no one should be surprised by the results of Professor Brian Fitzpatrick’s empirical research showing that Democrats have been the overwhelming beneficiaries of this process regardless of the party affiliation of the governor. For the nominees for whom campaign-donation data was available, 87 percent donated primarily to Democrats, while only 13 percent gave primarily to Republicans. The amount of money contributed by judicial nominees was skewed 93 percent to Democrats and only 7 percent to Republicans. 

Nor should anyone be surprised that the three most recent nominees for the Missouri Supreme Court all leaned decidedly to the left, and included two friends of MATA: Judge Michael Manners (a Democratic contributor and former president of the Missouri Association of Trial Attorneys), lawyer Joe Jacobson (a Democratic contributor and personal-injury lawyer whose website indicates that he is frequently involved in large class actions), and appellate judge George Draper (active in Democratic circles). 

I would have preferred to see Missouri legislators copy the U.S. Constitution, but the changes that they approved should go a long way toward putting an end to the dominant role the Missouri Bar and MATA have played when it comes to choosing Missouri’s appellate judges. Again, congratulations to all involved.

*List of MATA members who serve or served on Missouri’s Appellate Judicial Nominating Commission

(1) James Holloran, MATA President.

(2)  David Ansley, MATA Board.

(3)  Fred Wilkins, MATA President.  

(4)  Steve Garner, MATA Board.  

(5)  Richard McLeod, MATA Member.

(6)  John Wooddell, MATA Board. 

(7) Thomas Burke, MATA Board.

(8) Nancy Mogab, MATA Board.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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