Rush Limbaugh wouldn’t like what’s happening in the Missouri Senate.
No, not the deceased former radio entertainer known for his toxic takes. But his grandfather, Rush Limbaugh Sr. The elder Limbaugh was a distinguished Cape Girardeau, Missouri, attorney. He was also one of the fathers of the Missouri nonpartisan court plan, the process by which judges are chosen for appellate courts in the state, as well as circuit judges in St. Louis, Kansas City and Springfield.
This year, as happens nearly every year in the Missouri Legislature, there is a proposal to inject more partisan politics into the process by which those judges are chosen, put forth by a Republican, in this case, Sen. Rick Brattin, R-Harrisonville. The plan would gut the Missouri Plan, in which the governor chooses a judge from a panel approved by a bipartisan appointed committee after a merit process, and replace it with the federal system, in which a president chooses his judge and the Senate approves him or her (or doesn’t).
The Missouri Plan came about in 1940 as a strategy for fighting government corruption. At the time, a Kansas City political boss named Tom Pendergast had become so powerful that he was having the governor, whom he helped elect, appoint judges to his liking. Missouri’s legal community, from both sides of the political aisle, came together at a meeting at the Tiger Hotel in Columbia, led by Limbaugh and a few others, and devised a ballot initiative to de-politicize the process.
The Missouri Plan, approved by voters, has served the state well for more than 80 years, and has become a model for merit-based judicial selection processes throughout the country. A unanimous Missouri Supreme Court decision from 2019 helps explain how important the plan is to the independence of the judiciary. That’s the year that the state’s high court ruled that it is illegal for judges to threaten people with jail time because they can’t afford to pay their “board bills,” payments they owe the county due to a previous time in jail.
Also in 2019, the Missouri Legislature passed a law along the same line of thought. Nearly every lawmaker, both Republicans and Democrats, voted for the law.
The judges who voted together on the unanimous decision to overturn a scheme perpetrated for decades by rural, elected judges, were all chosen by the Missouri Plan.
That’s not a coincidence. They were acting independently and ruling in accordance with both state statute and the constitution. The locally elected judges, who had been jailing defendants in an effort to collect their board bills, and also ruling against the cases that ultimately ended up before the Supreme Court, were acting in a partisan fashion, not necessarily by party — some were Democrats, others Republicans — but in their perceived political interest. The local judges were collecting money for the county commission and the sheriff, powerful political forces in their counties.
The independence of the Missouri Supreme Court produced a better outcome. It’s an example of why no state in the nation that has adopted a version of the Missouri Plan has moved away from it. That fact should put the Missouri legislative debate, and a separate national one over how judges are chosen, into a proper political context.
Earlier this month, President Joe Biden announced that he was appointing a bipartisan commission to study possible changes to the U.S. Supreme Court, from adding seats to changing the lifetime term limits. Biden’s study is being portrayed by Republicans as a politicization of the court. They’re not necessarily wrong, but it’s a bit like the pot calling the kettle black.
Here’s how Missouri Attorney General Eric Schmitt, a Republican who is running for U.S. Senate as a converted Trumpist, characterized the effort in a Tweet:
“The radical left is obsessed with packing the Supreme Court. Joe Biden has carried their water so far — will he do it again? Adding more than 9 Justices to #SCOTUS to get a desired result is a terrible idea and should be rejected as an affront to our Republic and the rule of law.”
Never mind that noted “radical left” President Abraham Lincoln had 10 justices on the court during his time in office or that the noted “radical left” Founding Fathers didn’t specify how many justices should be on the court. When he was in the Missouri Senate, Schmitt was a defender of the Missouri Plan. Was he a radical lefty then? What would Schmitt think if Biden’s bipartisan commission came up with ways to make the Supreme Court less political, no matter which party might be in power?
That should be the goal, in Missouri and in the nation, when it comes to messing with the judiciary. If that goal leads Biden’s bipartisan commission to suggest changes that improve the independence of the U.S. Supreme Court, so be it. An attempt at political payback, however, would backfire, which is also why the latest attempt in the state Legislature to diminish the Missouri Plan should end up fizzling, just like all the others before it.
The radical left is obsessed with packing the Supreme Court. Joe Biden has carried their water so far — will he do it again? Adding more than 9 Justices to #SCOTUS to get a desired result is a terrible idea and should be rejected as an affront to our Republic and the rule of law. pic.twitter.com/P4X1TkbdMC— Eric Schmitt (@Eric_Schmitt) April 9, 2021