Bench Memos

Recent Missouri Plan Media

Law professors G. Alan Tarr and Brian Fitzpatrick had an excellent USA Today op-ed on state judicial selection on Friday:

Why are people increasingly disenchanted with the Missouri Plan? One reason is that it has not delivered on its promises. Supporters insist that a commission of “experts” is less political and can pick better judges than voters or public officials. But scholars have found no evidence that these lawyer commissions ignore politics or pick better judges. Another reason is the lack of public accountability. If a judge is incompetent or corrupt or doesn’t follow the law, what can citizens do? It is virtually impossible to defeat incumbent judges during retention votes because they have no opponents. It is also difficult to change who gets selected as a judge in the first place because so many commission members are selected by the bar rather than by voters or their elected representatives.

Professors Tarr and Fitzpatrick encourage states to follow in the footsteps of Kansas, Tennessee, and Oklahoma, which are embracing modified versions of the federal method of selection:

Sometimes the best solution to a problem is the one that has been in front of you all along. So it is here: we believe states ought to follow the lead of Tennessee and Kansas and return to the system in the U.S. Constitution.

Why? Because it enhances the quality of the judiciary and promotes accountability. Federal judges are nominated by the president and confirmed by the Senate and this division of responsibility, as Alexander Hamilton noted, “prevent(s) the appointment of unfit characters.” In addition, because those choosing the judges are elected officials, if the public does not like their choices, it can elect new officials. The system makes judges accountable to the citizenry, not the bar.

Unfortunately, as the Wall Street Journal pointed out today, the George Soros–funded group Justice at Stake is pushing for Pennsylvania to adopt the Missouri Plan for their state courts:

The supposed impetus now is a scandal surrounding the conviction of state Supreme Court Justice Joan Orie Melvin for improperly using court staff to work on an election campaign. She is suspended without pay and has said she will resign May 1. But as with campaign-finance reform, the political class is using a political scandal to grab more power.

The three former Governors—all lawyers—want a 15-member judicial nominating commission under the influence of the state bar. Four members would be selected by the Governor, four by the legislature and seven would be nominated by what the law refers to as “groups” but otherwise doesn’t define. As many as 13 of the 15 would be lawyers.

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