Judicial Politics

A Columbia attorney, Mr. Skip Walther, past President of the Missouri Bar Association, has been writing op-ed upon op-ed for the Columbia Daily Tribune and other newspapers extoling the virtues of the Missouri Plan. Today’s Tribune ( March 18, 2912) presents his latest screed, “Spring brings judicial politics.”
The Missouri Plan provides for the Bar Association to nominate three candidates to fill each high judicial appointment; the governor then must pick one. What, says Mr. Walther, could be more merit-based and less political than this?
A closer look will reveal that the Missouri Plan, while it may have worked well in the 1940s and 1950s, has been under the control of trial or plaintiff’s attorneys in a highly political process hidden from public view.

The Missouri Bar is dominated by trial attorneys and in turn it controls the Missouri Plan by selecting attorneys favorable to their point of view. We are the experts, trust us, they seem to be saying. The predictable result is some highly questionable decisions, many favoring the interests of trial attorneys.

Mr. Walther, though trying to appear reasonable, turns a blind eye to these problems and makes some rather outrageous claims. He singles out for attack Missouri Representative Stanley Cox, who favors a constitutional amendment to have Missouri’s method of selecting the highest-ranking judges follow the Federal model: the Governor proposes a candidate and the Senate approves or disapproves. His article in the Columbia Daily Tribune explains this and discusses some of the abuses of the Missouri Plan.

In essence the trial lawyers through the Bar Association are a special-interest group interested in feathering their nest under the guise of justice. Mr. Walther, however, claims that Representative Cox “wants to eliminate merit selection of judges and instead adopt a patronage system of judicial selection.” This is of course a complete distortion of Rep. Cox’s ideas. Mr. Walther goes on to suggest that governors would sell judgeships: “how much do you think it would cost to become a judge?” Wow. He then claims that “ultimately, our judges must be accountable to the law and the Constitution, not to politics.” Since the people exert their will through the political process, yes, judges are to be accountable to the people. In this sense politics is not dirty, but the essential working of our democracy. Mr. Walther must know that activist judges interpret the constitution to fit their own preferences. Example: radicals on the Iowa Supreme Court invented a right to homosexual marriage. Mr. Walther might say that there is public accountability since most of those justices were not retained in a recent election. About this we want to make two very important points: one, not all those justices are gone and, two, that awful decision still stands and is law in Iowa. We prefer a system that helps prevent radicals from ever getting to the bench, not possibly replacing them later and leaving the damage in place.
In the same issue of the Columbia Tribune there is an interesting story relevant to the effects of judicial decisions  A settlement in the collision of a motorcyclist with a city bus resulted in the city paying $1.4 million to his family. We cannot help wondering why the city must pay for a lapse by the bus driver and, if so, why do much. Note that just as corporations pay no taxes, but pass them on to customers, so the city doesn’t pay. We the taxpayers do. The city had nothing to do with the traffic accident. But the evolution of tort law, driven by judicial decisions starting in the 1970s changed the legal environment so that now those with “deep pockets” have to pay. There was no involvement of the legislature in this process. Thus the need for tort reform, bitterly opposed by trial attorneys. By the way, in this particular case, the law firm, which advertises heavily on local television, received 34% of the settlement, $478,709. Mind you, we do grieve with the family who lost a husband and father, but ask if an unrestrained judiciary has not created a system in which tax dollars come in and go right out to trial attorneys in the form of exaggerated settlements. Hmmm. Wouldn’t the average person think there just might be a little conflict of interest here? Just by the way The American Tort Reform Association placed St. Louis in its top 13 list of “judicial hellholes.”

A final remark. A 2007 study by the well respected Pacific Research Institute, Jackpot Justice, puts the direct and indirect costs of our broken tort system at $875 billion. This is equivalent to a $9,800 tax on every family of four. Clearly no other country has a legal system quite like ours.