How might the Missouri Plan restrict qualified people from becoming judges?

Answer 1

Imagine a judicial system where a judge can decide a case in which she is a defendant, even though there are nineteen other judges available and authorized by statute to hear the case.[1] Now, imagine a system of judicial discipline that takes place behind closed doors, where citizen complaints are routinely quashed with impunity. [2] And imagine a judicial nominating system that takes place in a smoke-filled room, wherein a select cabal decides who will become your next unelected and unaccountable super-legislator.[3] This is Colorado's experience with the "Missouri Plan."

Under a system of judicial election, anyone who meets the minimum qualifications for a judicial position can throw his own hat into the ring and take his case directly to the voters. In states using the "Missouri Plan," the state Bar and/or a small cadre of potentates act as gatekeepers, closing the door to disfavored but highly qualified candidates. One reporter observes with respect to Colorado's experience:

A couple of other attorneys I spoke with, Levi Martinez and Evan Lipstein, separately reflected on how the state's nominations process is also politicized: Martinez was one of the only lawyers to object to adoption of the merit selection/retention system in Colorado, 41 years ago. Lipstein, who's been around a while, too, has always been opposed to the practice of appointing primarily prosecutors to state district court vacancies, primarily because they aren't familiar with civil litigation. Lipstein had expressed his opinion on occasion with a tongue-in-cheek comment in his column of The Proclamation (a publication of the First Judicial District Bar Association). When Lipstein applied for a vacancy, he recalled, the nominating commission focused almost entirely --and unreasonably-- on Lipstein's past comments. Lipstein didn't get the job. Lipstein also noted that one "trick" the nominating commissions employ is to recommend three candidates, two of whom are woefully unsuited for the job, so that the Governor has no choice but to choose the one candidate "selected" by the commission.[4] Under what many argue is the fraudulent guise of preserving judicial independence, nominating commissions disenfranchise voters and unduly restrict their choices. This, in turn, has profound ramifications for self-governance, for over the last forty years or so, "the courts at the federal and state levels have transformed themselves into 'auxiliary legislatures'… This transformation of the judicial branch has become so complete that … more public policy is determined on the average Monday in June by the U.S. Supreme Court when it issues its decision than by Congress during it's entire session." [5]

---- [1] Smith v. Mullarkey, 121 P.3d 890, 891 & n. 1 (Colo. 2005) (per curiam). Under Colorado law, where a justice is precluded by law from hearing a case due to a conflict of interest, a judge of the state court of appeals can be called in as a substitute. Colo. Rev. Stat. § 13-4-101. However, for a law to have any meaning, judges actually have to follow it.

[2] Colorado's Commission on Judicial Discipline (known here as the Commission for the Abolition of Judicial Discipline), KnowYourCOurts.com, http://www.knowyourcourts.com/JDC/JDC.htm.

[3] In Colorado, all attorneys serving on the judicial merit selection system are chosen by majority vote of the state Attorney General, the Chief Justice, and the governor; all citizen members are chosen by the governor. Colo. Const. art. VI, § 24. See generally, Colorado Judicial Branch, Judicial Nominating Commissions: Colorado Merit Selection System, http://www.courts.state.co.us/supct/committees/supctnomincomm.htm.

[4]More info re: Salazar & Allard picks for federal bench vacancies , KnowYourCourts.com, Apr. 4, 2008.

[5] Robert Young (Associate Justice, Michigan Supreme Court), Reflections of a Survivor of Judicial Election Warfare (lecture), Apr. 18, 2001 at 7, available at http://www.manhattan-institute.org/pdf/mics6.pdf.