It is election season again. And that means it is time for complaining about electoral campaigns against retaining justices who sit on state supreme courts. These campaigns are said to be inconsistent with judicial neutrality because judges are forced to take positions on jurisprudence. Big money is said to buy judicial favoritism.
I am no fan of subjecting judges to elections. In my view, the far superior system is one, like the federal structure, in which the elected chief executive of the jurisdiction appoints judges for a term of years upon confirmation of a legislative body. But judicial elections are necessary, if the appointments are made according to so-called Missouri plans, an arrangement that permits lawyers to create a power center of their own in the judiciary. Indeed, while elections provide some corrective to the democratic deficit of those plans, they are an insufficient corrective, because voters do not generally focus on judicial elections. The better solution would be trade the end of the judicial elections for the termination of Missouri plans.
The classic Missouri plan works like this: The Governor appoints a jurist but only from a list drawn up by a commission. While he appoints three members of the commissions, the majority consists of three lawyers elected by the lawyers in the state and the Chief Justice. Lawyers thus have disproportionate influence on the selection of judges. These judges must then stand for retention at the next election. Missouri-type plans with a lot of variation are in effect in many states.
There are two glaring problems with this structure of selection. First, lawyers are ideologically unrepresentative of the citizenry as whole. For instance their contributions sharply skew to Democrats In an excellent article Brian Fitzpatrick of Vanderbilt Law School showed that: “Of the fifty-four nominees in Missouri since 1995 who made any campaign contributions, 87% gave more to Democrats than Republicans, and only 13% gave more to Republicans than Democrats. Over the same time period, Democratic candidates in Missouri only received roughly 50% of the general election votes in state and federal House races.”
Second, lawyers possess distinctive guild interests. It is hardly an accident that many of these states with Missouri plans have struck down tort reform legislation. More generally, lawyers benefit as a class by expanding the legal order as opposed to other forms of order that work without law, in drawing out the amount of legal process, and even in creating unduly intricate and less than clear legal regimes.
William O. Douglas is said to have argued that there was no reason for lawyers to have more power than milk products over the appointment of jurists and for once I agree with Justice Douglas. Giving lawyers and the judiciary itself formal authority over the selection process makes for a more insular, less representative tribunals that protect the interests of lawyers at the expense of the laity.
Fortunately, we are beginning to see oppositions to these plans. For instance, Tennessee is voting on a constitutional amendment to end their version of the Missouri plan this election. Moreover, these plans raise serious problems under the Supreme Court’s equal protection jurisprudence insofar as the election of commission members by lawyers would appear to violate the stricture of one person one vote. Cato said at the end of every speech that Carthage must be destroyed. Any discussion of judicial elections in states with Missouri plans should always end with plea for the plans’ elimination.