This article is likely to be published after the November General Election, but I am writing it before. As you know, there are a significant number of judges that are going to be on the ballot for retention. Many of you, as lawyers, may have been asked for recommendations on how your friends and family should vote. I would not recommend the method of a good friend of mine who said “I just vote to retain the judges with Irish last names!” It is important to also recognize that a recent decision by the Missouri Supreme Court regarding ballot access, created renewed interest in the Missouri Court Plan. I want to take some time to remind people what the Missouri Non-Partisan Court Plan is and how it contributes to a well-respected and independent judiciary. (Well, as independent as you can get with appointed judges).

The Missouri Non-Partisan Court Plan, established in 1940, represented a significant development in the landscape of judicial selection in Missouri, but has reverberations all over the United States. 

Before the implementation of the Non-Partisan Court Plan, Missouri's judiciary was primarily chosen through partisan elections. This system often resulted in judges being influenced by political pressures and campaign contributions, leading to concerns about the impartiality and integrity of the judiciary. The growing dissatisfaction with this approach prompted legal reform advocates to explore alternative methods for selecting judges. 

The catalyst for the Non-Partisan Court Plan came after the Great Depression when the need for judicial integrity became paramount. Legal scholars, civic leaders, and organizations like the American Bar Association pushed for reforms to ensure that judges could rule fairly and without external pressures. This culminated in the adoption of the Non-Partisan Court Plan, which sought to balance the need for accountability with the necessity for judicial independence.

The Missouri Non-Partisan Court Plan is characterized by its unique three-step selection process, which applies to the selection of judges in the state's appellate and some of its circuit courts. All appellate judges are selected through the plan, as well as circuit judges and associate circuit judges in Clay, Jackson and Platte Counties in the Kansas City area, St. Louis City and St. Louis County and Greene County in the Springfield area. 

The process involves the following key components:

1. Judicial Nominating Commissions

When a vacancy arises, a non-partisan judicial nominating commission, composed of both lawyers and non-lawyers, is convened. The commission is tasked with evaluating candidates based on merit rather than political affiliation. Typically, the commission consists of three members appointed by the governor, three members elected by the Missouri Bar Association, and three members appointed by the Missouri Supreme Court. This diverse composition aims to ensure a fair representation of interests in the judicial selection process.

 2. Candidate Selection

The nominating commission reviews applications and interviews candidates, ultimately submitting a list of three qualified nominees to the governor. This list is meant to reflect the best available candidates without regard to political ties. The governor then selects one nominee from this list to fill the judicial vacancy.

3. Retention Elections

After being appointed, judges serve for at least 12 months and then are put before voters at the next general election. judges must garner a majority of votes to be retained and if they fail to be retained, the seat will become vacant. After the initial retention vote, appellate judges serve 12 years, circuit judges 6 years and associate circuit judges 4 years before they must face voters in another retention election. This process allows the public to have a say in the judiciary while minimizing the influence of partisan politics in the initial selection.

It has been the strong and consistent position of the Bar Association of Metropolitan St. Louis that there are enormous benefits of the Non- Partisan Court Plan. 

One of the most significant advantages is the enhanced independence it provides to judges. By removing the pressures of partisan elections and campaign fundraising, judges can focus on interpreting the law impartially. This independence fosters public confidence in the judiciary and ensures that justice is administered fairly.

Another benefit is the focus on merit-based selection. The emphasis on qualifications and merit rather than political affiliation has resulted in a more competent and professional judiciary. The rigorous vetting process undertaken by the judicial nominating commissions ensures that only the most qualified candidates are nominated for judgeships. This emphasis on merit has contributed to a judiciary that is better equipped to handle complex legal issues and gives judges credibility immediately upon assuming the bench. While there is always a learning curve for judges, all the Parties that appear before the judge can assume a level of confidence in the competence of the judge. 

Unlike the Federal Judiciary, where judges are appointed for lifetime tenure, the Non-Partisan Court Plan gives the public an opportunity to become judges themselves, determining if the people that have been appointed, live up to the standards of being a qualified and impartial judge. Reducing the role of politics in judicial selection, it also maintains a mechanism for public accountability through retention elections. This process allows voters to assess the performance of judges and hold them accountable for their decisions. It strikes a balance between independence and accountability, which is crucial for maintaining the integrity of the judiciary.

Despite its many benefits, the Missouri Non-Partisan Court Plan is not without its criticisms and challenges.

One of the primary criticisms of the retention election process is that it often lacks public engagement. Many voters are not well-informed about the judges on the ballot, leading to low turnout and a lack of meaningful evaluation of judicial performance. This situation can undermine the accountability aspect of the plan. In order to combat that, the Missouri Supreme Court has established through Rule 10.50 a “Judicial Performance Review Committee” to review the performance of judges of the Supreme Court of Missouri, the court of appeals and each judicial circuit whose judges are selected through the Missouri Non-Partisan Court Plan in order to evaluate the performance of judges based on judicial performance review standards.

While the goal of the Non-Partisan Court Plan is to minimize political influence, there are concerns that the appointment process for nominating commission members can still be susceptible to politics. Governors may and usually do appoint individuals who share their political views, potentially skewing the selection process. It would be folly to think that there are no politics involved in the selection of judges. The goal is to create structures that maintain the integrity of the process and minimize partisanship as much as possible. While partisan pressure will always exist, many a Governor has been faced with three candidates for appointment that do not always share their political viewpoint that have been nominated by the judicial Commissions.  In my experience, once a person has been appointed to the State Judiciary, it is often impossible to tell what their political affiliation is or predict how they are going to rule on issues before them. That is an indication that the system works.

And yet, in today’s politically charged environment, there has been a resurgence of partisan rhetoric surrounding judicial selection in Missouri. Critics argue that the Non-Partisan Court Plan should be replaced with a system that allows for more direct political influence in selecting judges. This pushback highlights the ongoing tension between maintaining judicial independence and responding to public calls for greater accountability. 

Legislative attempts to alter the selection process have emerged, driven by a belief that more political oversight is necessary for accountability. These proposals have sparked significant debate among legal scholars, civic organizations, and political leaders, raising questions about the balance between judicial independence and political influence.  Additionally, public sentiment regarding judicial performance and accountability has evolved, particularly in light of high-profile cases, including recent decisions by the Missouri Supreme Court, that have moved people to campaign against individual judges. 

This dynamic has emerged in the past. In 2004, Supreme Court Judge Richard Teitleman faced a well-funded and organized campaign to deny him retention. With significant pushback from both the Plaintiff and Defense Bars, Judge Teitleman was retained with over 60% of the vote. That vote, if successful, could have undermined the entire Non-Partisan Court Plan. Opponents were not arguing that Judge Teitleman was unqualified or impartial, they argued that they didn’t agree with his rulings. 

But let’s be clear on something. While there is public accountability under the plan, the Non-Partisan Court Plan is not designed to remove judges that you disagree with on a particular ruling. Rather, it is designed to remove judges who are not qualified and who demonstrate inappropriate bias on the bench. 

That is a difficult concept for some. They view outcomes as the single determinate as to whether a judge should be retained. But in my view, that isn’t the standard. The Judicial Evaluation Committee looks at more than just outcomes in their evaluation and I think they got it right. The committee considers a variety of information about each judge, including lawyers’ ratings of judges, jurors’ ratings of some trial judges, as well written opinions from judges.

Jurors are asked and can give input about the judge’s courtroom conduct. The lawyers’ survey, sent to those who appear before the judges asks about key traits that judges need to render justice effectively and fairly. Circuit and associate circuit judges were rated in areas including a wide range of observable skills and traits, such as treating people fairly, competency in the law and writing clear opinions. Supreme Court and Court of Appeals judges are rated on areas such as whether their opinions were clearly written, whether they adequately explained the basis of the court’s decision and whether they issued opinions in a timely manner.  This holistic view of how judges act is a much better way to evaluate the competency of judges rather than focusing on one opinion that caused some level of controversy. The law doesn’t always say what the general public thinks it says and often more than one reasonable outcome can be the result of the same set of law and facts. Close decisions are usually the hardest because there is no black and white, merely shades of grey. In this context, I would modify Samual Johnson’s famous quote that “Patriotism is the last refuge of a scoundrel” to “Calling someone an activist judge is the last refuge of a scoundrel” because it usually just means they disagreed with an outcome rather than truly believing a judge has overstepped or demonstrated an unconscionable bias.

The Missouri Non-Partisan Court Plan has significantly shaped the state's judicial landscape over the past eight decades. By emphasizing merit-based selection and judicial independence, the plan has created a judiciary that is better equipped to serve the public interest and one that ultimately serves the public as it should.

As debates surrounding judicial selection continue, BAMSL will continue to strongly support the Non-Partisan Court Plan as the best way to ensure that qualified individuals are placed on the bench and that they serve with civility and impartiality. It is imperative that as other civic institutions are weakened and attacked that the essential independence of the judiciary be maintained. A functioning democracy depends on an independent judiciary and the Missouri Non-Partisan Plan is a bulwark for independence and one that BAMSL is proud to support and defend.