Bench Memos

Law & the Courts

Pennsylvania Needs to Stay Away from the Missouri Plan

I have just learned that Pennsylvania’s legislature is considering a constitutional amendment to change the state’s method of judicial selection from elections to a system modeled on the Missouri Plan, under which a commission would choose a slate of candidates from which the governor could select judges.

The bill proposes that the new method of selection is “a better way to ensure a fair, impartial, and qualified judiciary.” It suggests that a Missouri Plan system would focus more on legal qualifications (hence marketing it as “merit” selection), while elected judges are chosen “Based on their ballot position, campaign fundraising abilities, or where they live” and are “seemingly beholden to wealthy lawyers and special interest groups who might appear before them in court.”

These asserted benefits of the Missouri Plan are initially appealing—after all, isn’t it common sense that better judges would come from a system that claims to remove politics from the process of judicial selection?  Early adopters of such systems can perhaps be forgiven for assuming a commission-driven process could achieve such results.  However, with nearly a century of evidence, the drawbacks of Missouri Plan selection have become clear, and its purported benefits have not been demonstrated in practice.

For example, are elected judges actually less fair, impartial, or qualified than judges chosen by other means?  That’s not what the empirical research has shown.  In fact, they seem to be both more productive than appointed judges, resulting in overall more citations by outside courts, as well as more independent.  Perhaps counterintuitively, elected judges are actually more willing to vote with judges from the opposite party.

What research does show is that Missouri Plan-selected judges are more likely to reflect the politics of the selecting committee than the citizens of the state at large—generally resulting in a court well to the left of the state as a whole.  Eliminating elections doesn’t remove politics from the judicial selection process; it just moves the politics behind closed doors.  Far from eliminating special interest sway over judicial selection, it leaves the door wide open for interest groups to increase their influence without democratic supervision or accountability.

This is the primary defect in the Missouri Plan: that it places too much control over one particular branch of government in the hands of a group of people—the nominating commission—who are not accountable to anyone.  While the real decisionmakers are largely invisible to the public, Missouri Plan selection gives the governor political cover for his or her own decisions because they can shift blame to a faceless commission who selected the panel of potential candidates.

Finally, calling the proposed system a “hybrid elective-appointive system” dramatically overstates the value of the retention elections that judges must stand in to retain their seats.  Without an opponent, these elections routinely result in incredibly low participation and 98-99% retention rates.  These aren’t true elections that provide a public check on judges.  They’re rubber stamps.​

Advocates of the Pennsylvania bill claim it will help increase public confidence in the courts, and are meanwhile peddling unsubstantiated claims about the real effects that would follow its implementation. People aren’t clamoring for a new judicial selection system. In fact, an ABA survey found a majority of respondents preferred to elect their judges rather than have them appointed through a Missouri Plan-type system, and by a more than two-to-one margin.  And an earlier ABA study showed that 75% of Americans believed elected judges were more fair and impartial than appointed ones.  Missouri Plan proponents are ironically engaging in a campaign to disparage and thereby decrease public confidence in elected judges in order to build their case.  Moreover, numerous states that have a Missouri Plan system are moving toward more accountable methods of judicial selection—including Missouri itself.

And let there be no doubt: Republicans in Pennsylvania are presently complicit in an effort to strip the citizens of Pennsylvania of their right to vote for judges.  And, in so doing, they are unwittingly advancing the objectives of left-wing special interests.  The Missouri Plan was the brainchild of Progressive Era activists. Today it is championed by Soros-funded liberal extremists, and it serves primarily to promote the interests of trial lawyers.  Any Republican legislator in Pennsylvania who supports this bill should be held accountable for doing so.

 

 

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

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