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06.11.2008 9:01 pm

Thursday editorial: Keeping judges independent

scomo_opt.jpgThe U.S. Senate this week gave unanimous consent by voice vote to President George W. Bush’s appointment of Missouri Supreme Court Judge Stephen N. Limbaugh Jr. to the U.S. District Court for Eastern Missouri.

Given that Senate Democrats and the Republican president have been feuding over judicial appointments, and given that Judge Limbaugh built a generally conservative record in 16 years on the state Supreme Court, and given that he is the cousin of a certain outspoken radio host, why was there no dissent?

Perhaps it’s because Stephen N. Limbaugh Jr., 56 — like his father, Senior U.S. District Court Judge Stephen N. Limbaugh, Sr., 80 — is a highly regarded jurist whose scholarship, temperament and demeanor are beyond reproach. Indeed, the senior Stephen Limbaugh and his father, the late (and original) Rush Limbaugh of Cape Girardeau, both proudly served as president of the Missouri Bar.

All of which suggests some irony: When Judge Limbaugh Jr. steps up to the federal bench, Gov. Matt Blunt will appoint his successor on the state Supreme Court. And the Republican governor and some of his conservative supporters are fierce critics of the Missouri Bar’s influential role in the selection of judicial nominees.

Last summer, after a 5-2 Supreme Court decision (Judge Limbaugh dissented) that said public employees have the right to bargain collectively, Gov. Blunt criticized “judicial activism” and lack of political accountability on the court. Business interests and some conservative organizations began funding efforts to supposedly reform the Missouri Non-Partisan Courts Plan.

The “Missouri Plan,” which has become a national model for the merit selection of judges, was adopted in 1940 to take politics out of selection of judges for the Supreme Court, the state’s three courts of appeal and judicial circuits in urban areas.

At issue last summer was the selection of a successor for Supreme Court Judge Ronnie White, who retired to enter private practice. Under the Missouri Plan, a special seven-member Appellate Judicial Commission reviews applicants for the positions and sends three names to the governor.

The commission is headed by the chief justice of the Supreme Court and includes three members appointed by the Missouri Bar. The other three members are appointed by the governor for staggered terms of six years. Mr. Blunt, elected in 2004, has appointed only one member of the commission; the others were appointed by his Democratic predecessor, Bob Holden.

Critics of the plan say that it gives too much clout to lawyers and lacks political accountability. Further, they complain that the winnowing process of applicants occurs in secret, with only the names of the three finalists made public.

Mr. Blunt insisted that each of the three finalists fill out a nine-page, 111-question form that delved into their background, education and judicial philosophy. Some of the governor’s staffers (now former staffers) made repeated demands for more information from Chief Justice Laura Denvir Stith and the judicial commission. And some Republicans in the Legislature introduced bills to alter the Missouri Plan in ways that would subject judges to more political pressure — pressure from which they largely are protected under the Missouri Plan.

Ultimately, these efforts failed. The Missouri House rejected a bill that would have made modest changes to the non-partisan courts plan, with 20 Republicans voting with Democrats against it. Members of the state bar — Republicans and Democrats alike — lobbied against it. Although the existing court plan is not perfect, it does keep judges free from most political pressures. Supreme Court judges come up for retention votes after one year on the bench, but they usually don’t face well-financed opposition from special interest groups. If retained, they serve 12-year terms.

The Missouri Plan has given the state conservative Supreme Court judges (such as Stephen Limbaugh Jr. and William Ray Price Jr.) and liberal judges (such as Michael A. Wolff and Richard B. Teitelman). Whatever their particular judicial philosophies, these jurists have this in common: They are eminently qualified and proudly independent. What’s not to like?

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4 comments

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What a terrible editorial. Not once did you mention the real problem. The LIBERAL Chief Justicess submitted three LIBERAL candidates. She played politics in the system you think is so non-political. You will see this matter resurface. There has to be a way to present the Governor with more than three choices if they are unacceptable. It doesn\’t work when LIBERAL judges scam the system. Why don\’t you at least pretend that you are objective.

— flyover
7:46 am June 12th, 2008

Only in the editorial board’s fantasy world could the current system be described as a good one. The Governor, who by law is required to make a choice, is perfectly reasonable in his desire to have HIS questions answered by the candidates.

The most recent scuffle is only one aspect of the deficiencies of the system. The fact is, under the current system, judges are never voted out. The public knows absolutely nothing about the judges whom they are called upon to vote in or out, and for some reason, most people vote to retain them. Nobody has sufficient incentive to campaign against a judge, and the cost to do so would be enormous.

The idea that judges are - and should be - “free from most political pressure” is absurd. I’m sure that, if the constitutionality of Missouri’s constitutional amendment prohibiting gay marriage - one with which, by the way, I happen to disagree - were to be taken up by the court, the Post-Dispatch would spare no effort in applying the pressure of public opinion to the court. As courts in Massachusetts and California have demonstrated, judges do not interpret the law in a vacuum.

— Nick Kasoff
9:55 am June 12th, 2008

The three attorney members of the appellate judicial commission are not selected by the Missouri Bar, as an organization. Individual lawyers from each of the three districts of the Court of Appeals elect a lawyer from their district to serve. All lawyers who reside within a district are eligble to vote for the member from their district. In over 20 years of practice, I have received letters from individuals seeking election to the Commission, but I have never been lobbied by any entity or person (other than the actual candidates)to support any particular candidate.

— Michael Shipley
3:38 pm June 13th, 2008

The Missouri Nonpartisan Plan is political to the very core. All members of the commission to select the three judges, consist of attorney’s picked by attorney’s, the chief justice,and the most laughable of all-”citizens”, are all politically active.All make political contributions. One “citizen’s” husband is a high profile attorney who was nominated for a position in a prior presidential administration. To make judges accountable, perhaps congress should be making the selection, instead of a commission and one political figure, the governor. Congressional members are put in office by the public and are the only one’s I feel would have our back. It is no longer the 40’s, when the plan started.In this information age, it is time for a change.

— Phyllis Davis
7:24 pm July 9th, 2008