by Missouri Rep. Ed Emery (R-126 including the counties of
Barton, Dade, Jasper and Polk)
"...The contemporary understanding of judicial independence and of the judicial power did not emerge until the nineteenth century when the role of the jury was curtailed, the common law was transformed, and judicial review was institutionalized."--G. Alan Tarr, Department of Political Science, Rutgers University
Greene County will vote on November 4, 2008, on whether to abandon judicial elections and allow an unelected commission to decide who sits in judgment in their circuit courts. I recently participated in a forum to discuss the pros and cons of their initiative. Three attorneys took supportive or neutral roles, and I spoke against the change. Another forum is scheduled for September 29th, and I have been asked to participate.
The Greene County proposal places an unelected commission, the majority of which is comprised of judges or attorneys, in charge of the selection of judges. The governor would still appoint a judge, but his selection is limited to the choices of the commission. Some call it "merit" selection, but there is no selection criterion, so merit is completely subjective according to the majority of the commission. At the state level, in a state that is roughly 50/50 Democrat/Republican, the same plan has selected 17 Democrats out of the last 18 judges.
If voted in, the Greene County Selection Commission will be made up of three members of the Missouri bar and two non-members. Therefore, not voters or elected officials, but the Missouri Bar, will be unilaterally selecting the judges before whom they try their cases. It's a closed loop that leaves the average citizen completely out. Would you want Lowe's to pick your home builder or O'Reilly's to pick your auto mechanic? It is interesting and perhaps significant that in almost 60 years under this plan only two judges have been removed by the retention election process which citizens are told provides accountability.
Some supporters of this radical change genuinely believe it will remove politics from judicial selection, but that seems naïve. To remove politics, you don't move a process further from the people and closer to Jefferson City politicians - you do just the opposite. Bureaucrats checking on bureaucrats is not government of the people, by the people, and for the people.
The Missouri Bar says the state Commission on Retirement, Removal and Discipline of Judges is the answer to accountability. But the judicial watchdog group HALT, Inc. disagrees. Their senior counsel Suzanne Blonder says: "Missouri's system of judicial oversight is one of the least transparent in the nation." If Greene County adopts the judicial initiative on their November ballot, a small elite group will meet behind closed doors and pick judges with virtually no criteria or accountability.