Note:  The following two articles and learning activities were written by Millie Aulbur, director of Citizenship Education Program of The Missouri Bar, as part of the bar’s partnership with the Missouri Press Association Newspapers in Education program.

Baseball is a great American tradition.  At a baseball game, we will see players from each team, managers, coaches and, of course, the men in black—the umpires.  Even though the umpires may make us mad at times, we all know that it is necessary to have them for the game to be played in a fair manner.

We also have umpires in our courts—they are the judges.  Both our federal and state governments are based on three separate but equal branches—legislative, executive and judicial.  The legislative branch, which is Congress at the federal level and the General Assembly at the state level in Missouri, makes the laws.  The executive branch, which is headed by the president at the federal level and by the governor at the state level, makes sure that these laws are properly carried out.  The judicial branch, which is our courts, makes sure that the laws and how they are carried out are fair to everyone.

In baseball, the umpire does not make the rules for the game.  He does not get to bat, pitch or field the ball.  He cannot like one team better than another; he has to be fair to both sides.  He does not get to pick which games he umpires—he is assigned to a game.  His only job is to decide if a pitch is a ball or strike or if a runner is safe or out.

A judge’s job is very similar to that of an umpire.  Judges do not get to make the laws or decide how they will be enforced.  They do not get to choose which cases come to their courts.  They must be fair to all the people who come seeking justice.  The judges must not favor one side or another.  Their job is to listen to the people who bring them their cases and then look at the laws that the legislature has passed as well as the Constitution and decide who is right or wrong.  Our judges are the ones who make sure our government is fair to everyone, not just the majority or the richest or the most powerful.

Judges are often called the umpires of the law because they make sure their courtrooms are fair for everyone who comes there seeking justice. The Framers, the men who wrote our Constitution, were faced with a dilemma as to how federal judges should be selected so they could be the fairest umpires possible. The Framers strongly believed that the people should have some part in choosing judges, but they had two big concerns:

1. The people already had control over who was elected to the legislative and executive branches and these elected officials would tend to listen more to the majority if they wanted to remain popular with people. But our government was to be for everybody, not just the majority.
2. People running for election need money, and the Framers worried that judges might tend to favor those people who had given them campaign money.

The Framers solved the problem by having the elected officials of the people choose the judges—the president nominates judges and the senators must approve the president’s choices.

Missouri’s original constitution modeled the federal selection process with the governor nominating someone for judge and the Missouri Senate either rejecting or confirming the nomination.  However, in the 1850s, Missourians began electing all of their judges.  During the 1930s, the public became alarmed at the increasing role of politics in judicial elections and judicial decision making.  The problems the Framers had foreseen with a popular election of federal judges happened in Missouri—many judges were afraid to make decisions that would lose them an election and they favored the people who gave them money to run their campaigns. This was especially true in the large cities.

With Missouri lawyers leading the way, Missourians voted to amend the Missouri Constitution in 1940 by adopting a different way of selecting judges:

• Trial judges in rural areas, where the people were more likely to know their judges and keep them honest, were still to be elected.
• All other judges, trial and appellate, were to be chosen in a three-part process:

1. A panel made up of equal numbers of people from the two major political parties suggests three people to be a judge.
2. The the governor chooses one of these three to be a judge.
3. Every so many years the people of Missouri vote if they want the judge who the governor chose to stay in office. This is called a retention election.

This system is called Missouri’s Non Partisan Court Plan. It was the first of its kind and has often been called “A Model for the Nation.”  Over 30 states have now adopted the plan or something similar to the plan.

1. Why do officials who are elected often do what the majority of the people want them to do? Why is this usually okay? When is it not okay?
2. Consider a horrible murder case where the accused does not get a fair trial. Why might it be a hard decision for the judge to say there should be a new trial if they have to run for re-election after they make the decision?
3. Think of some reasons why it might not be the best situation for judges to have to raise campaign money for an election. Remember a judge is the umpire in our court system—would you want an umpire in a baseball game to be paid by someone who is playing your favorite team? Why or why not?