The Missouri Plan - Should We Bring it to Alabama?

The Alabama Bar Association's plan for selecting appellate court judges is very similar to Missouri's Non-Partisan Court Plan, often known simply as the Missouri Plan. According to the Missouri Bar, that plan was implemented over 50 years ago, and since then, over 30 other states have used it as a model for their own judicial appointment procedures.

This Federalist Society white paper presents a convincing case for why the Missouri Plan is inferior to partisan election as a method for appointing judges. (One of the authors is Alabama's own Michael DeBow, a professor at the Cumberland School of Law.) Here's a snippet:

In spite of the reformers’ best intentions, politics inevitably surrounds the work of the nominating commissions in Missouri Plan states. In operation, the Missouri Plan substitutes committee politics for electoral politics. The appearance of expertise and non-partisanship is largely, if not entirely, a facade -- a fact widely noted in the political science literature.

This should, perhaps, come as no surprise. The interest groups that have a significant stake in the composition of a state's bench will try to promote their interests to the best of their ability, no matter what judicial selection mechanism the state uses. First among these groups is the bar. Within the bar, the plaintiffs’ lawyers and the "defense" lawyers have divergent interests, and can be expected to engage in "political" maneuvers to ensure that "their" candidates gain appointment to the nominating commission. Clearly, as one commentator has pointed out, Philosophical differences between plaintiff and defense bars can . . . lead to tensions in the appointment of lawyer members to the commission and in the actual [judicial] selection process."

It thus appears impossible to remove "politics" from judicial selection, regardless of the method used, where "politics" is understood as including the agendas of interest groups most notably the bar -- with a particular stake in the judicial selection process.

Another Federalist Society white paper counters by presenting the pro-appointment position:

In the states which use the appointment means of judicial selection, those bodies charged with selection responsibilities – governors, legislatures, nominating commissions, or some combination of the three – enjoy an informational advantage over the general public in evaluating potential jurists. With little information about judges on the ballot, voters in partisan elections have no choice but to rely on party cues, thus linking selection to national or local partisan issues rather than qualifications or actual job performance. There is a certain unappealing crassness about the election of judges that threatens the reverence for and the legitimacy of the bench. In states with elected judiciaries, judges must hustle votes and they must raise money for campaigns. To do both, they must depend heavily upon lawyers who appear before them, which can create impropriety and appearances of impropriety, and which horribly conflicts with the judicial duties of fairness and impartiality in decision-making.

If you read further, even the pro-appointment guys find inherent problems with the Missouri Plan of "merit" selection that the Alabama Bar proposes to adapt for Alabama.

Anyway, changing the subject a little...these two papers should put to rest this silly notion that Federalist Society members march in lock-step.