Assessing State Judicial Selection: The Missouri Plan vs. Partisan Elections

By Alexander E. Hopkins
2013, Vol. 5 No. 01 | pg. 1/2 |

Since the United States Constitution was ratified in the late-18th century, the question of state judge selection has been an important topic in legal theory. Since 1976, it has been one of the most widely debated issues in law school journals throughout the country (DuBois, 1986, p. 31). The main question that is pondered is whether judges should be independent on the bench or accountable to constituents. The five main methods of selection are: Gubernatorial Appointment, Legislative Election, Partisan Election, Non-Partisan Election and the “Missouri Plan” (Baum, 2007, p. 107). For the purposes of this paper, each of these five methods can be classified as either election-based or merit-based. I argue that the Missouri plan is more effective than partisan because it helps maintain objective decisions by state judges. Compared to a judge standing for election, the Missouri plan takes into account qualifications over popularity. The end result is an insular decision-making environment, sealed from issues of popularity, allowing objective decisions to be rendered.

While the Missouri Plan does not involve elections, it is a fair compromise to partisan elections. The governor of the state, who is elected by the people, nominates the state candidate to fulfill a state judgeship vacancy. When making a nomination, the governor is assisted by an administrative body, which includes lawyers who are members of the state bar (Webster, 1995, p. 27). While the governor can be subject to the popularity of their constituency, the nominated state judge is not. Thus, once a judge is on the bench, they should be unconcerned about making a decision that is unpopular with the public (Webster, 1995, p. 12). Instead, they should focus on what really matters: upholding the laws of the state.

To begin, most critics of the Missouri plan contend that separating politics from judges is impossible to accomplish. According to attorney Ryan M. Harding (1969): “You cannot take the judiciary out of politics. Judges, by the very nature of their office, are involved in policy-making decisions, and the determination of policy is in fact a political act” (p. 1164). While it is true that a judge’s decision would have political implications on the bench, this does not mean that the judge has to make decisions based on the whims of the public.

Conversely, attorney John Remsen argues (1999) that state judges should be left out of their selection. He believes:

Good politicians often do not make good judges, and good judges often do not make good politicians, and, as Lord Halifax said, ‘True merit, like a river, the deeper it is the less noise it makes’ (p. 4).

Many proponents of the Missouri plan believe that judges do not have to campaign. Rather, a judge’s qualifications should speak for the candidate when nominated by the state governor. The Missouri plan capitalizes on qualifications over popularity because its main function is to seek the most qualified judges for the bench.

Law Professor Robert Davidow addresses the concern Missouri plan opponents who point out that the judge is not accountable to the constituency. Rather than the Missouri Plan’s opponents’ comparison of a judge to a politician, Davidow believes that judges are more like a jury panel. He explains (1989, p. 723):

Judge and jury perform very similar, although not identical, functions. While the chief function of jurors is to make findings of historical fact, judges also perform this function when trying cases without jurors and when ruling on such matters as motions to suppress evidence in criminal cases. Both jurors and judges apply legal principles to historical facts. Judges, however, establish the legal principles to apply, whereas jurors presumably accept instructions from judges as to the applicable legal principles.

Since the judge has legal training, a judge’s job is simply to apply formal judicial rules in the courtroom. Even when a jury is absent in a judge’s courtroom, the judge will be, according to political science professor Bradley Cannon (1988/89), “…someone who identifies with no group, advances no interest, prefers no particular policy, and has no ties to the litigants at the bar…” (p. 747).

Opponents argue that the Missouri Plan tips the scales of independence and accountability in favor of the former. They claim that, if a judge is not elected by the people, then the interests of the constituency is not represented. U.S. Department of State Legal Advising Assistant David Pozen writes (2008):

Public participation should not be attenuated by an appointive scheme, in which judges are chosen not by the voters but by the voters’ representatives, or, worse yet, by a merit selection scheme, in which unelected cognoscenti are allowed to narrow the field (p. 273).

While Pozen’s argument is valid, it is important to keep in mind that it is only argued by one person. However, this is not to say that other people do not hold his view. Rather than examining the constituents of state electing judges directly, we can instead shift our attention to how the majority of states react to merit selection. For 34 states and the District of Columbia (D.C.), merit selection has been adopted in some form for over two decades (Remsen, 1999, p. 2). Since none of these territories have reverted back to holding elections during this time, we can assume that the public in these places are content with how they are represented.

Opponents of the Missouri Plan have likewise argued that these territories have not adopted merit selection in a standardized form (Hanssen, 2002, p. 83). This will, according to proponents, inevitably cause confusion among other states. However, the proponents’ retort to this argument is that each state and district has adopted merit selection to fit their own particular needs. There is no standard for enforcing merit selection because each state has its own distinctive socio-political landscape. This is evident because, over many years, each state has spent considerable amounts of time and money creating state laws that maintain merit selection (Hanssen, 2002, p. 83). To change these majoritarian state laws would be unnecessary because, not only have the majority of people indicated content with merit selection in the majority of states, but resource expenditures towards changing these laws would be significant.

Proponents of the Missouri Plan oppose partisan elections because objective decision-making for judge selection can be distorted. As Steven P. Croley writes (1995), the end result could resemble nothing more than a popularity contest:

Scrupulous judges, who refuse to respond to majoritarian pressures, may as a result be removed from office and replaced with unscrupulous judges. Over time, this phenomenon would create a systemic bias in favor of judges most responsive to majoritarian pressures (p. 727).

Both proponents and opponents of the Missouri Plan would likely agree that the judge must pay at least some attention to how the public reacts in light of a court’s ruling. To ignore these ramifications would be like, as former U.S. Supreme Court Associate Justice Sandra Day O’Connor put it, “...like ignoring a crocodile in your bathtub...” (Pozen, 2008, 281).

Thus, independence and accountability must be balanced and maintained by a sitting state judge. However, when a judge consistently defers to the public instead of upholding the law, they become vulnerable to . A judge that is corrupted is neither independent nor accountable.

Suggested Reading from Inquiries Journal

This paper addresses the historical, current, and projected scope of wrongful convictions in the judicial process of the United States. Herein, numerous research studies are reviewed in order to identify the trend  of this problem, determine its origin, and propose solutions. Specifically, the paper addresses the implications of the expanding American custodial system and the decline in homicide clearance rates necessary for the efficacy of... MORE»
Advertisement
The federal earmark is a topic often lamented by the general public as corrupt and wasteful. Until recently, this "pork" was a mainstay of politics in Washington. Because distributive spending is often used to advance partisan goals such as reelection, previous scholarship suggested that legislators of the same party would work... MORE»
“The U.S. must provide leadership, as it did in the rebuilding of Europe after World War II. Sixty years ago… on June 5, 1947, U.S. Secretary of State George Marshall, speaking at a Harvard Commencement, suggested the need for a massive program of aid and redevelopment for Europe that came to be known as the Marshall... MORE»
It would be impossible to implement the legal enforceability of election promises though, because of the format and procedures of our governmental’ and legal systems. The major reason is that the question, in stating “legally accountable,” suggests that election promises should be enforceable before the courts. However, that would mean that judges would be overseeing the operation of Government and the Parliament. If this... MORE»
Submit to Inquiries Journal, Get a Decision in 10-Days

Inquiries Journal provides undergraduate and graduate students around the world a platform for the wide dissemination of academic work over a range of core disciplines.

Representing the work of students from hundreds of institutions around the globe, Inquiries Journal's large database of academic articles is completely free. Learn more | Blog | Submit

Follow SP

Latest in Law & Justice

2016, Vol. 8 No. 10
Over the last few decades, fetal homicide laws have become the topic of fierce debate. Some argue they are necessary to protect pregnant women from violence and provide for restitution in cases of assault that result in the loss of the fetus. Others... Read Article »
2016, Vol. 8 No. 09
The right to privacy dates back farther than 1890, when Supreme Court Justice Louis Brandeis penned The Right to Privacy: “In the very early times, the law gave remedy only for physical interference with life and property, for trespasses vi... Read Article »
2016, Vol. 8 No. 01
The most commonly cited statistic for the gender wage gap in the United States is that women earn seventy-eight cents to every dollar men earn. A great deal of contention however, surrounds the interpretation of this measure as well as others seeking... Read Article »
2009, Vol. 2 No. 2
Two years ago, my mom handed me the article, "Below a Mountain of Wealth, a River of Waste," from The New York Times, describing Freeport-McMoRan's mining activities in Papua New Guinea. After reading "Below," I knew that the world had to change... Read Article »
2015, Vol. 7 No. 10
This research paper thoroughly explains the concept of money laundering and examines the costs that are endured by the governments, financial institutions, but most importantly individuals who are most vulnerable to the influence of organized criminal... Read Article »
2010, Vol. 3 No. 2
The past sixty years witnessed a global proliferation of international courts and tribunals of almost all sizes and purposes. Today, they play important roles in international governance by handing down decisions in compelling areas ranging from... Read Article »
1997, Vol. 1996/1997 No. 2
It is obvious that the majority of the population finds the breaking of promises, especially those made during an election, unpropitious in anything but the most dire of circumstances. It could be said that if politicians’ election promises... Read Article »

What are you looking for?

FROM OUR BLOG

The Career Value of the Humanities & Liberal Arts
How to Select a Graduate Research Advisor
5 Tips for Publishing Your First Academic Article