Observers Watch Missouri Judge Selection Process

LIANE HANSEN, host:

The court system in Missouri is under scrutiny, some would say under attack. The issue has to do with the way judges in the state are chosen. The current process has been in place for more than 60 years. But some conservative groups are now challenging the system. They say it allows too many activist judges to take the bench.

Missy Shelton of member station KSMU has the story.

MISSY SHELTON: First, a brief history lesson: It's 1940. Political bosses and their machines are abusing the courts. Missouri voters are fed up. So they approved a plan for choosing judges that they hope will diminish the role of politics. The new process is so popular, more than 30 other states eventually adapt some version of the Missouri Plan for choosing their judges. Now, that plan is under attack by conservative groups that argue politics has found its way back into the system.

John Elliott is president of the Adam Smith Foundation. He says some judges are allowing their politics and opinions to shape rulings, especially in death penalty cases.

Mr. JOHN ELLIOTT (President, Adam Smith Foundation): When they become judges, they swear to uphold the Constitution. So if they come on with a bias against the death penalty, then already we've got a problem and where they bring in their personal views into a system where they're not supposed to do that.

SHELTON: Jessie Rutledge is communications director for the Justice at Stake Campaign, a non-partisan group based in Washington, D.C. that opposes efforts to change non-partisan court plans. He says it's the conservative groups that are trying to politicize the judiciary.

Mr. JESSIE RUTLEDGE (Communications Director, Justice at Stake Campaign): In many ways, what's going in Missouri is a testing ground for many of the special interest groups who are attempting to politicize the courts. And if it's a strategy that is employed successfully in Missouri, we expect it to be exported to many other states around the country.

SHELTON: Here's how the Missouri Plan works with the state's appellate and Supreme Court. A non-partisan commission of lawyers and private citizens narrows the field of applicants and forwards the finalist names to the governor. The governor then chooses a judge from that list. Voters decide whether to keep the judge on the bench after the judge has served at least a year.

Conservative groups complained that this process has put judges on the bench who use their personal beliefs to decide cases rather than the law. They say that trial lawyers control the commission and the public has no real say in the process.

St. Louis attorney Bill Placke is especially harsh in his assessment. He says allowing the public to vote on whether to keep a judge is a joke.

Mr. BILL PLACKE (Lawyer, St. Louis): There was a judge standing for retention who received a 30 percent out of the hundred rating from the bar association and was recommended not for retention. This judge received a statistically insignificant lower vote than judges who had ratings in the 80s. What that says is that voters are not engaged.

SHELTON: But supporters of the current system say the retention vote is a valid process that gives the public a voice in deciding who sits on the bench. Placke and others are pushing the state to adopt a version of the federal system, where the governor's nominee would face confirmation from the state Senate.

Getting the public interested in something as unsexy as this issue is a challenge. When a slot opened on the state Supreme Court earlier this year, a conservative group put up billboards encouraging the public to call members of the judicial selection commission to complain about judicial activism.

Commission member Steve Garner received calls all right.

Mr. STEVE GARNER (Member, Southern District, Appellate Judicial Commission): I was receiving calls from people that were calling to talk about their divorce, how they didn't like the decision of a judge in their divorce.

SHELTON: Even if the public hasn't yet embraced this issue, state lawmakers are paying attention. Republican State Senator Matt Bartle, an attorney from the Kansas City area, says lawmakers are frustrated.

State Senator MATT BARTLE (Republican, Missouri): If you're a layperson serving in a legislature and you see the political blood that gets spilled over many years to get something pass, and then it passes with bipartisan majorities and boom, two weeks later, a judge sitting in Kansas City or St. Louis says no, the law can't go into effect. It causes gnashing of teeth in frustration.

SHELTON: That frustration is expected to lead to a variety of proposals to change the judicial selection process in the upcoming legislative session, a process that Missouri has relied on for more than half a century.

For NPR News, I'm Missy Shelton in Springfield, Missouri. Transcript provided by NPR, Copyright NPR.