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Assessing the Summer 2007 Appellate Judicial Commission Process

August 28th, 2007 by mopns · No Comments

The below excerpt from an excellent treatise, reveals the liberal bias demonstrated by Chief Justice Laura Stith and her Appellate Judicial Commission this past summer. Furthermore, the information exposes that none of the three candidates subscribe to the philosophy of judicial restraint. Lastly, it features some interesting details regarding potential legal challenges to the Missouri Plan based on the grounds of equal protection under the Fourteenth Amendment among other things. Below is an excerpt from the very well researched paper:

Chief Justice Laura Denvir-Stith. (photo)

Over the past year, there has been much debate over whether to amend Missouri’s process for selecting judges, known as the Missouri Non-Partisan Court Plan or the “Missouri Plan.” Proponents of reform have argued for hearings open to the public and legislative input into the appointment process. Those who oppose updating the Missouri Plan have cited three principal reasons that the Missouri Plan is the best from amongst many plans: (1) the plan is non-partisan, (2) it is based on merit, i.e., pure credentials, and (3) the sitting Governor receives three nominees who are philosophically in-line with the then Governor or at least from the same political party. On May 18, 2007, Judge Ronnie White of the Supreme Court of Missouri announced his retirement from the court, thereby drawing into clear focus the failures and successes of the Missouri Plan. This announcement triggered the process whereby the three theoretical assumptions upon which the Missouri Plan is based would be put to the practical test. Whether the Missouri Plan is better in theory than in execution, or whether the Summer 2007 Appellate Judicial Commission (the “Commission”) properly executed the plan, are legitimate questions to debate.3

The purpose of this paper is to review the theory and assumptions about the Missouri Plan as applied by the Summer 2007 Commission.The paper stresses that the philosophy of the judges appointed to the state’s highest court has consequences: lasting societal implications in everything from criminal law to private contracts and especially tort law. According to a recently published paper on the contemporary history of the Missouri Supreme Court, from 1992 to 2002, jurists espousing principles of judicial restraint comprised a majority of the Supreme Court. Following twelve years of Democrat governors Carnahan and Holden, in 2002, with the appointment of Judge Teitelman, the Carnahan-Holden Supreme Court majority:

“modified Missouri tort law to relax the causation requirement, and takes a more liberal approach to federal and state constitutional law. The court exhibits less deference to the legislature and to precedent, and has expanded Missouri’s venue rules and statute of limitations while relaxing traditional contract law. The current court is also more willing to overturn death sentences for ineffective assistance of counsel and for lack of a fair trial caused by pre-trial publicity, and to overturn other criminal convictions for insufficient evidence.”

In 2004, Missourians elected Republican Matt Blunt as Governor. Governor Blunt repeatedly stressed that he would expect the Commission to deliver to him three candidates that espoused the principles of judicial restraint, would not “legislate from the bench,” and rejected an activist court philosophy. Just days before the applications for replacement of Judge White were due, Missouri rotated its Chief Justice position from Michael Wolff to Laura Denvir-Stith.

Missouri’s newest Chief Justice claimed not to understand the meaning of the common term “judicial activism” or what it meant to legislate from the bench. Given the overwhelming discussion of judicial activism and judicial restraint beginning with the famous case of Marbury v. Madison in 1803, and continuing through Judge Bork’s groundbreaking and best selling book “Tempting of America” in 1990, Justice Stith’s claim of ignorance was literally incredible. Especially so, since less than one year ago, many people who are not judges, much less on the state’s highest court, could still recall the explanation of judicial activism by Chief Justice Roberts of the U.S. Supreme Court in his now famous analogy: a judge is like an umpire applying the rules laid out in the rule book by those responsible for making the rules [i.e., the legislature] – an activist umpire is one who makes up new rules outside of the rule book or applies the rules in a way never intended by those who wrote the rule book.

After reviewing all thirty applicants in just two days (giving an appallingly scant half hour interview for each applicant to the Supreme Court), the Commission forwarded three nominees to the Governor for his consideration. Two of the three were Democrats and one was a Republican. In and beyond Missouri, it is a political truism that a governor of one party, Democrat or Republican, will be loathed to appoint a person from the opposite party to the highest court. In Missouri, it has not happened in the last half century, and the last time a Governor of one party was implicitly forced to appoint a judge from the other party was nearly three decades ago during Governor Kit Bond’s administration. Operating under this truism, after the Commission nominated two Democrats and one Republican, even the most generous interpretation is that the Commission had gamed the system by de facto making the choice of judge. During twelve years of Democrat Governors, in five instances of the Commission nominating a person for the Supreme Court, not once was any one of the three nominees a Republican. Read more…

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