Bench Memos

Missouri: Trial-Lawyer Heaven

Late last week Missouri’s judicial-nominating commission selected the three nominees from which Gov. Jay Nixon must choose the state’s next supreme-court justice. The nominees are: 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). 

Three of the commission’s seven members have extremely strong ties to the state’s trial lawyers, and the chairman, Chief Justice Richard Teitelman, is on the board of the Soros-funded American Judicature Society. So it shouldn’t surprise anyone that the commission came through with a trial lawyer’s wish-list.

The Missouri Plan was designed to produce precisely this sort of result. The progressive legal reformers who came up with the idea saw it as the surest way of placing control over judicial selection in the hands of “experts,” left-leaning bar apparatchiks. (One of the architects of the Missouri Plan, Harold Laski, was a Marxist leader in Britain.) It does so by allowing a commission, usually lawyer-dominated, to make the judicial nominations. Not surprisingly, this structure benefits the special-interest group that dominates the state bar: trial lawyers. Textbook agency-capture.

Justice O’Connor and her allies in various Soros-funded groups have been campaigning across the country on the argument that the Missouri Plan is a non-political method for selecting judges. The federal model and contested elections are too political, they say, and you wouldn’t let any old citizen choose your heart surgeon, so why would you let him choose your judges? When nominating commissions jam governors with nominees they would never choose themselves, the response from Missouri Plan supporters is that they should get over it.  They argue that, unlike the federal model or contested elections, the Missouri Plan removes partisanship and money from the equation and forces “merit” ahead of philosophical considerations.

In their dreams, perhaps.

Politics and judicial philosophy are at the heart of the Missouri Plan. Just not those belonging to anyone who believes that judges should make decisions on the basis of the law and the Constitution instead of personal political agendas. As the Wall Street Journal documented (see here and here), former Republican governor Matt Blunt was repeatedly sent lists of trial lawyers and Democrats. And Professor Brian Fitzpatrick’s empirical study of the Missouri Plan nominees demonstrates that it would probably be impossible to tilt judicial nominations further to the left without actually having the Democratic party itself pick the judges. As I wrote several months ago:

This is how the people of Iowa ended up with a supreme court that unanimously ruled in favor of gay marriage, the people of Missouri with a supreme court that cited ”the views of the international community” to invalidate a death sentence, the people of Kansas with a supreme court that has repeatedly injected itself into the state’s budget process, and the people of Alaska with a court that invalidated the state’s reasonable, pro-life Parental Consent Act.

In all of these cases, the state’s high court was well to the left of its citizenry. That’s one reason why the method is under assault by conservatives in all four of those states, with Republican governors Terry Branstad, Matt Blunt, Sam Brownback, and Sarah Palin criticizing it at various points in recent history.

There is no merit in “merit” selection, just political gamesmanship — insulated from accountability and beholden to trial lawyers. 


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