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Tuesday, August 22, 2017

Column: Missouri Plan needs a major overhaul

The lawyer-dominated panel typically chooses liberal state judges.

Marcus Bowen

March 2, 2009

On Friday, former U.S. Supreme Court Justice Sandra Day O'Connor spoke to students and faculty at MU's School of Law. The retired justice spoke in support of the Missouri Plan, which is the method for selecting state judges.

The plan is now replicated in more than 30 states and gives the power of selecting judicial candidates to a group of seven: three lawyers selected by the Missouri Bar, three residents selected by the governor and the chief justice of the Missouri Supreme Court. The group forwards a list of three candidates to the governor, who makes the appointment. The appointed judge then faces a vote in the next general election.

O'Connor said the Missouri Plan keeps judges from miring themselves in the oft contentious election process. O'Connor did admit the plan could use a bit of perfecting. On this point, the justice and I certainly agree. In fact, I would argue the Missouri Plan could benefit from more than just a little perfecting.

Our state's so-called "nonpartisan" plan needs a major overhaul. We rely on a lawyer-dominated panel to select our state's judges. This panel has repeatedly selected liberal, anti-business judges. These judges are notorious for awarding large, job-killing settlements in lawsuits brought by personal injury lawyers.

In 2008, the American Association for Justice, a group representing more than 50,000 of the nation's top personal injury lawyers, made nearly $3 million in campaign contributions, 95 percent of which to Democrats. These lawyers dominate the so-called non-partisan selection process in Missouri. In Friday's symposium, Vanderbilt University law professor Brian Fitzpatrick said 88 percent of Missouri appellate court nominees who made political contributions have given to Democrats since 1995.

I believe everyone is entitled to his or her opinion, but using the judicial selection process to carry out a political agenda is just wrong. These personal injury lawyers stake their livelihood on choosing judges that will rule against businesses and award large settlements to their clients. According to Princeton Review, experienced personal injury lawyers make an average of $127,000 a year. Their livelihood is based on how liberal, or anti-business, our state's judges are willing to be in their rulings.

Our system makes Missouri hostile to business and is dominated by a good-'ol-boy network of lawyers. So, what's the solution?

Take the power from the elite and give it back to the people. First, remove the three personal injury lawyers from the judicial selection panel and replace them with three experienced, randomly selected retired state judges. It is inappropriate for the chief justice to select his own colleagues, so he will be replaced with a randomly selected retired Missouri Supreme Court judge. This new, all-citizen panel would hold meetings in the public eye, and would present the governor with five potential nominations, rather than three. The newly selected judge would face a statewide vote in the following election.

I can't take credit for this plan; it's largely the idea of Kenny Hulshof. Unfortunately, our governor benefited heavily from the donations of personal injury lawyers and their network -- he favors the status quo. These revisions would rid Missouri of the "smoke filled room" perception.

Our plan puts greedy trial attorneys in charge of judicial selection.

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