O'Connor offers suggestions for Missouri Plan

Retired Supreme Court justice praised the innovative Missouri Plan.

By Armeen Mistry

Published March 2, 2009

Retired Supreme Court associate justice Sandra Day O'Connor praised and offered suggestions to improve Missouri's method of selecting judges at the 2009 Law Review Symposium in Cornell Hall.

"This is a topic that matters, whatever your position," O'Connor said. "I think everyone here can agree that we want the best judges we can get and we want to keep the best judges we can get as long as they're providing a good service."

The policy of selecting judges, the Missouri Plan, is a merit-based system.

Missouri became the first state to adopt a merit selection plan in 1940 with the goal of pre-screening judicial candidates to better test their qualifications. This method aims to take away party politics and restore judges who uphold the laws without fear of losing re-election due to unpopular decisions.

"The expense and the volatility of judicial campaigns have risen to obscene levels," O'Connor said. "Money is pouring into our courtrooms by way of increasingly expensive judicial campaigns. The public's trust in our courts is deteriorating, in my opinion, as a result."

O'Connor said the number of trial lawyers on the selection committee coupled with closed proceedings hinder public trust in the process.

Missouri Law Review Editor-in-Chief Matt Feldhaus agreed with O'Connor.

"It's kind of a controversy as to how many states are merit selection and how many states are Missouri Plan," Feldhaus said. "It depends on how you define it. One of the key distinctions is the number of attorneys who make up the commission."

O'Connor praised Missouri's role as a leader in judicial independence and a target for those who would marginalize it.

"While I favor a merit selection system, that has become synonymous with Missouri, it's important to remember that its value relies entirely on the premise of diminishing the politics in judicial selection," O'Connor said. "So if it fails to do that, maybe it fails on its first principles."

Feldhaus said debate about the Missouri Plan is increasing. He said the plan is stable in Missouri, but many would be willing to implement some of the changes O'Connor suggested.

"None of the debates seem to be suggesting elections in Missouri," Feldhaus said. "They seem to be looking more along the lines of a Senate confirmation process and tweaking the way in which judges would be nominated."

Across the country, the Missouri Plan is not widely accepted. Some states use an election process, but others combine a merit system with elections.

"It's a question that our states have been unable to answer with a unified voice," O'Connor said. "The states in our country have reached no consensus."

Thom Lambert, associate dean for faculty research and development at the law school, said even among students and faculty at MU, the Missouri Plan is not wholly accepted.

"I would assume that there's a great deal of diversity of opinion as to whether the Missouri plan is good as currently constituted or not," Lambert said.

He said people would like the Missouri Plan with O'Connor's suggestions because it would lessen the power of lawyers in the selection committee.

O'Connor ended with an appeal for increased civics education for young students.

"It is the citizens of our nation that have to preserve our system of government and we can't forget that," O'Connor said. "Missouri is called the show-me state, and it has shown the nation how we can do a better job of selecting our judges."