By Millie Aulbur, Director of Citizenship Education, The Missouri Bar

1. To learn about Missouri’s Non-Partisan Court Plan.
2. To explore how Missouri’s Non-Partisan Court Plan aids the court in its role in a system of separation of powers and checks and balances.
3. To explore how Missouri’s Non-Partisan Court Plan promotes the principle of judicial impartiality.
4. To learn how The Missouri Bar helps to inform voters in retention elections.
5. To compare and contrast the federal and state methods of selecting judges.

9-12

Handouts for and access to either a writing board or a flip chart.

1. Show the video about The Missouri Plan at http://www.yourmissourijudges.org/ or distribute the student handout—Missouri’s Non-Partisan Court Plan. (Most of this material was reprinted from courts.mo.gov with additions and edits by The Missouri Bar.)  Have the students read it silently or read it together as a class.
2. Distribute the student handout—Federal Judicial Selection. (Most of this material was reprinted from crf-usa.org with edits and additions by The Missouri Bar.)  Have the students read it silently or read it together as a class.
3. After learning about both the state and federal judicial selection process, distribute student handout—Comparing and Contrasting Missouri’s Non-Partisan Court Plan and Federal Selection of Judges. Do it as a class project or in groups of 3-4.  (See possible answers after the Debrief)
4. After completing the comparison and contrast charts, discuss the questions.
5. Brainstorm with the students about how voters can become informed about judicial retention elections. Discuss why judicial retention elections are less familiar to voters than the election of other officials.
6. Have the students go online to mobar.org to learn more about the Judicial Performance Evaluation Survey. Have students examine the results of the survey.  What categories would matter most to them in making a decision about whether or not a judge should be retained?
7. Show a clip from court scenes in the Miracle on 34th Street movie and discuss the role of politics in regard to the judge and how students felt about it.
8. Debrief:
   1. What did you learn? What surprised you?
   2. What do still need to know?
   3. How will you use this information?

Possible answers:

Note:  The two sources for this handout are www.courts.mo.gov and www.mobar.org where there is a link to information about the Missouri plan.

Missouri’s method for selecting some circuit court judges and all appellate judges is known as the Missouri Non-Partisan Court Plan and has been called A Model for the Nation. The evolution of this plan is an interesting history lesson.

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 increasingly dissatisfied with the increasing role of politics in judicial elections and judicial decision making.  Of particular concern, was the influence of political machines in Kansas City and St, Louis.   Not only were judges plagued by outside influences due to the political aspects of the election process, their dockets were congested due to the time that the judges spent campaigning.

Then, in November 1940, voters amended the Missouri Constitution by adopting the “Non-partisan Selection of Judges Court Plan,” which was placed on the ballot by initiative petition. The adoption of the plan by initiative referendum resulted from a public backlash against the widespread abuses of the judicial system by the Pendergast political machine in Kansas City and by the political control exhibited by ward bosses in St. Louis.

The non-partisan plan provides for the selection of judges based on merit rather than on political affiliation. Initially, the non-partisan plan applied to judges of the Supreme Court; the court of appeals; the circuit, criminal corrections and probate courts of St. Louis city; and the circuit and probate courts of Jackson County.  (The reasoning for not having circuit judges in all of Missouri’s counties chosen under the plan was that in smaller counties, it was easier for people to know who was running for judge and, therefore, easier for the electorate to decide if a candidate would make a good judge.)   In 1970, voters extended the non-partisan plan to judges in St. Louis County, and three years later, voters extended the non-partisan plan to judges in Clay and Platte counties. These changes are reflected in the Missouri Constitution, as amended in 1976.   In 2008, Green County voted to have their circuit judges chosen through the non-partisan plan.  The Kansas City Charter extends the non-partisan selection plan to Kansas City municipal court judges as well. Under the constitution, other judicial circuits may adopt the plan upon approval by a majority of voters in the circuit.

A Supreme Court judge must be at least 30 years of age, licensed to practice law in Missouri, a United States citizen for at least 15 years, and a qualified voter of the state for nine years preceding selection. Judges may serve until the age of 70.

Under the Missouri non-partisan court plan, a non-partisan judicial commission reviews applications, interviews candidates and selects a judicial panel. For the Supreme Court and court of appeals, the appellate judicial commission is composed of the chief justice of the Supreme Court, three lawyers elected by The Missouri Bar (the organization of all lawyers licensed in this state) and three citizens selected by the governor. Each of the circuit courts in Clay, Green, Jackson, Platte and St. Louis counties and St. Louis city has its own circuit

judicial commission. These commissions are composed of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers elected by the bar and two citizens selected by the governor. All of the lawyers and citizens must live within the circuit for which they serve the judicial commission.

Once the judicial commission meets, it selects a panel of the three most qualified applicants and submits that three-person panel to the governor. The governor has 60 days in which to appoint one of these three panelists to fill the vacancy. If the governor does not select one of these three panelists within the 60-day timeline, then the selection of the new judge goes back to the judicial commission.

The non-partisan plan also gives the voters a chance to have a say in the retention of judges selected under the plan. Once a judge has served in office for at least one year, that judge must stand for a retention election at the next general election. The judge’s name is placed on a separate judicial ballot, without political party designation, and voters decide whether to retain the judge based on his or her judicial record.

To inform voters about the performance of non-partisan judges, lawyers and jurors participate in a judicial evaluation survey in which they rate those judges about whom they have personal and direct knowledge. They evaluate judges on important characteristics such as fairness, legal analysis skills, diligence and decisiveness. The results of this judicial evaluation survey then are distributed to the public via the media and the League of Women Voters.

Many times voters go to the polls on Election Day and when they get to the section on judicial retention, they realize that they have not learned anything about the judges they are being asked to vote yes or no on retaining.  Two of the reasons for this are:  1) Missouri judges cannot campaign as vigorously for retention as others running for elections; 2) Retention elections are held in conjunction with important national and state elections and these overshadow judicial retention elections.

The Missouri Bar is the best source of objective information for retention elections.  The Missouri Bar has been evaluating judges appointed under the non-partisan court plan and providing that information to voters since 1948.   The evaluation of judges up for a retention election is conducted as follows:

1. The Missouri Bar conducts an evaluation for every merit-selected judge seeking retention. The people who do the evaluating are the lawyers who practice in front of the judges, and in the case of trial court judges, jurors are asked to evaluate the judges who presided over the trials when they served as jurors.
2. After the evaluation process is completed, the Judicial Performance Review Committee, a statewide committee composed of lawyers, retired judges and lay persons, looks at the evaluations and makes recommendations about whether a judge should be retained. The committee members are appointed by The Missouri Bar Board of Governors.  The committee votes on whether or not they believe a judge substantially meets overall judicial performance standards. For more information about the committee and its operation, go to http://www.yourmissourijudges.org/reviews/
3. The findings of the Judicial Performance Review Committee are published by The Missouri Bar and are online at mobar.org and are free to anyone who requests them.

The president “shall nominate and by and with the Advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court . . . and other officials of the United States.

— U.S. Constitution, Article II, Section 2
This is all that the United States Constitution says about the selection of United States Supreme Court justices as well as federal judges at all levels—both appellate and trial judges.  Realizing the importance of an effective judiciary, the framers of the Constitution gave both the president and the Senate a role in selecting judges. This was done to assure that the best people would be picked and that neither the executive nor the legislative branch could control the judiciary. But the Constitution did not define how the Senate should give its “advice and consent” on judicial appointments.

The Constitution also says nothing about the qualifications of federal judges. Over the years, presidents have looked for different qualities in their court nominees. One of the most important has been the nominee’s legal training and experience. Presidents have also made nominations so that the justices do not all come from one part of the country. A candidate’s religion—and more recently race and sex—have been additional factors considered by presidents trying to achieve a balanced court. Finally, most presidents want to put people on the court who share their philosophy about government, the law, and the Constitution. But it is not easy to predict how a person will decide cases once he or she gets on the bench.

The president may nominate a person for the court for many different reasons. But what about the other side of the Constitutional equation? For what reasons may the Senate reject a judicial nominee? Again, the Constitution is silent.

Shortly after the Constitutional Convention, Alexander Hamilton wrote in No. 76 of The Federalist Papers that there had to be “special and strong reasons for the refusal” of any presidential nominee. On the other hand, Hamilton recognized that the “advice and consent” requirement “would be an excellent check upon a spirit of favoritism in the President.”

Since 1789, when George Washington made his first Supreme Court appointments, the Senate has rejected 28 out of 139 nominations. Most of these rejections came about because the nominee lacked legal ability, was inexperienced, or had committed some unethical act. Some argue that these should be the only reasons for rejecting a Supreme Court nominee. Others, however, reason that senators should also have the freedom to vote against a nominee because of his or her ideas.

The process of selecting federal judges begins when the president receives recommendations from senators for candidates from their states. The president then makes nominations, which are forwarded to the Senate. The nominations are referred to the Senate Judiciary Committee, chaired by a member of the majority party. Committee members send the nominees questionnaires about their backgrounds and writings, which are scrutinized by the committee. The nominee may go through one or more hearings where they are questioned by the committee. The committee then makes its recommendations to the full Senate, which votes on the appointment.

All federal judges are appointed by the president, confirmed by the U.S. Senate, and serve for life. There is only one way under the Constitution that federal judges can be removed: The U.S. House of Representatives can vote to impeach any federal judge for “treason, bribery or other high crimes or misdemeanors.” The judge is then tried by the Senate. To remove the judge, two-thirds of the Senate must vote to convict. Only 13 federal judges in our history have been impeached by the House and just seven convicted by the Senate. All have been convicted for alleged criminal behavior. None has ever been convicted for making unpopular decisions or for holding an unpopular judicial philosophy.

The founders of our country saw the importance of having judges make decisions about law and the Constitution free from political pressure. Only time will tell if their wisdom will survive.

Fill in the chart below:

For discussion:

1. Which plan—Missouri or the United States allows for a more independent judiciary? Why?
2. What aspects, if any, of Missouri’s Non-Partisan Court Plan would you like to see the federal government adopt? Why?
3. What aspects, if any, of the federal selection plan would you like to see Missouri adopt? Why?
4. Do you think appellate judges at either level should be elected by the people?
5. How do the ways both Missouri and the federal government currently select judges protect the rights of the minority?
6. How do both systems promote an impartial judiciary?
7. What can be done to inform more voters about judicial retention elections in Missouri?