Show Me Courts

1. Distribute the student handout—Missouri's Non-Partisan Court Plan. (Most of this material was reprinted from www.courts.mo.gov with additions and edits by The Missouri Bar.) Have the students read it silently or read it together as a class.

2. Distribute the student handout—Federal Judicial Selection. (Most of this material was reprinted from www.crf-usa.org with edits and additions by The Missouri Bar.)

3. After reading both handouts, distribute student handout—Comparing and Contrasting Missouri's Nonpartisan Court Plan and Federal Selection of Judges. Do it as a class project or in groups of 3-4.

Missouri’s method for selecting some circuit court judges and all appellate judges is known as the Missouri Nonpartisan Court Plan and has been called A Model for the Nation. The evolution of this plan is an interesting history lesson.

Partisan Elections

In the first 30 years of Missouri's statehood, the governor appointed the judges of the Supreme Court and circuit courts with the advice and consent of the senate. After much public discussion, voters amended the Missouri Constitution in 1850 to provide for the popular election of judges. This system continues in effect for most Missouri courts today. In most areas of Missouri, voters elect judges in partisan elections.

During the 1930s, the public became increasingly dissatisfied with the increasing role of politics in judicial selection and judicial decision-making. Judges were plagued by outside influences due to the political aspects of the election process, and dockets were congested due to time the judges spent campaigning.

Then, in November 1940, voters amended the Missouri Constitution by adopting the "Nonpartisan Selection of Judges Court Plan," which was placed on the ballot by initiative petition. The adoption of the plan by initiative referendum resulted from a public backlash against the widespread abuses of the judicial system by the Pendergast political machine in Kansas City and by the political control exhibited by ward bosses in St. Louis.

The nonpartisan plan provides for the selection of judges based on merit rather than on political affiliation. Initially, the nonpartisan plan applied to judges of the Supreme Court; the court of appeals; the circuit, criminal corrections and probate courts of St. Louis city; and the circuit and probate courts of Jackson County. In 1970, voters extended the nonpartisan plan to judges in St. Louis County, and three years later, voters extended the nonpartisan plan to judges in Clay and Platte counties. These changes are reflected in the Missouri Constitution, as amended in 1976. The Kansas City Charter extends the nonpartisan selection plan to Kansas City municipal court judges as well. Under the constitution, other judicial circuits may adopt the plan upon approval by a majority of voters in the circuit.

A Supreme Court judge must be at least 30 years of age, licensed to practice law in Missouri, a United States citizen for at least 15 years, and a qualified voter of the state for nine years preceding selection. Judges may serve until the age of 70.

Operation of the Plan

Under the Missouri nonpartisan court plan, a nonpartisan judicial commission reviews applications, interviews candidates and selects a judicial panel. For the Supreme Court and court of appeals, the appellate judicial commission is composed of the chief justice of the Supreme Court, three lawyers elected by The Missouri Bar (the organization of all lawyers licensed in this state) and three citizens selected by the governor. Each of the circuit courts in Clay, Jackson, Platte and St. Louis counties and St. Louis city has its own circuit judicial commission. These commissions are composed of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers elected by the bar and two citizens selected by the governor. All of the lawyers and citizens must live within the circuit for which they serve the judicial commission.

Once the judicial commission meets, it selects a panel of the three most qualified applicants and submits that three-person panel to the governor. The governor has 60 days in which to appoint one of these three panelists to fill the vacancy. If the governor does not select one of these three panelists within the 60-day timeline, then the selection of the new judge goes back to the judicial commission.

The nonpartisan plan also gives the voters a chance to have a say in the retention of judges selected under the plan. Once a judge has served in office for at least one year, that judge must stand for a retention election at the next general election. The judge's name is placed on a separate judicial ballot, without political party designation, and voters decide whether to retain the judge based on his or her judicial record. To inform voters about the performance of nonpartisan judges, lawyers participate in a judicial evaluation survey in which they rate those judges about whom they have personal and direct knowledge. They evaluate judges on important characteristics such as fairness, legal analysis skills, diligence and decisiveness. The results of this judicial evaluation survey then are distributed to the public via the media and the League of Women Voters.

How effective has the nonpartisan plan been in preserving judicial independence?

Since adoption of the Missouri nonpartisan court plan in 1940, no appellate judge has been voted out of office, and only two circuit judges have been voted out of office. Judge Marion D. Waltner of Jackson County was voted out in 1942. The other, Judge John R. Hutcherson of Clay County, was voted out in 1992 after receiving failing reviews from lawyers in the judicial evaluation survey. Thus, judges being voted out of office for a way he/she decided a case has been practically non-existent.

The president "shall nominate and by and with the Advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court . . . and other officials of the United States.

This is all that the United States Constitution says about the selection of United States Supreme Court justices. Realizing the importance of an effective judiciary, the framers of the Constitution gave both the president and the Senate a role in selecting judges. This was done to assure that the best people would be picked and that neither the executive nor the legislative branch could control the judiciary. But the Constitution did not define how the Senate should give its “advice and consent” on judicial appointments.

In recent years, a number of controversies have arisen over the appointments of both Supreme Court justices and lower federal judges. Some experts worry that the process has become too political, leading to bitter partisan struggles on ideological grounds. Some fear that, if this trend continues, not only will well-qualified individuals be discouraged from becoming judges, but that the ranks of the federal judiciary will be filled with judges more likely to make decisions on the basis of politics rather than by independent thinking.

It is not surprising that these concerns have arisen in the last four presidencies, those of Ronald Reagan, George Bush, Bill Clinton and George W. Bush. During these administrations, the president was often of a different party than the majority of the Senate, but although the Senate has had a Republican majority, Republican President George W. Bush has not had any smoother sailing than his predecessors. Senate minority members have “filibustered” presidential nominees, keeping them from coming to a vote on the Senate floor.

The Constitution says nothing about the qualifications of Supreme Court members. Over the years, presidents have looked for different qualities in their court nominees. One of the most important has been the nominee’s legal training and experience. Presidents have also made nominations so that the justices do not all come from one part of the country. A candidate’s religion—and more recently race and sex—have been additional factors considered by presidents trying to achieve a balanced court. Finally, most presidents want to put people on the Supreme Court who share their philosophy about government, the law, and the Constitution. But it is not easy to predict how a person will decide cases once he or she gets on the Supreme Court.

The president may nominate a person for the Supreme Court for many different reasons. But what about the other side of the Constitutional equation? For what reasons may the Senate reject a Supreme Court nominee? Again, the Constitution is silent.

Shortly after the Constitutional Convention, Alexander Hamilton wrote in No. 76 of The Federalist Papers that there had to be “special and strong reasons for the refusal” of any presidential nominee. On the other hand, Hamilton recognized that the “advice and consent” requirement “would be an excellent check upon a spirit of favoritism in the President.”

Since 1789, when George Washington made his first Supreme Court appointments, the Senate has rejected 28 out of 139 nominations. Most of these rejections came about because the nominee lacked legal ability, was inexperienced, or had committed some unethical act. Some argue that these should be the only reasons for rejecting a Supreme Court nominee. Others, however, reason that senators should also have the freedom to vote against a nominee because of his or her ideas.

On July 1, 1987, President Reagan nominated Robert Bork, a conservative federal appeals court judge, to be an associate justice of the Supreme Court. His nomination raised a storm of controversy in the Senate controlled by the Democrats.

Reagan had already appointed two conservative members of the Supreme Court, and if Bork were confirmed, it would give the conservatives a solid four votes. Since at least one other justice frequently sided with the conservatives, Democrats feared that conservatives would control the nine-member Supreme Court.

Robert Bork, age 60, had excellent legal credentials as a law professor, legal writer, U.S. solicitor general, and federal judge. However, Bork was an advocate of “original intent,” a philosophy about how to interpret the Constitution. This means that he believed the Supreme Court should decide cases strictly according to the words and intent of those who wrote the Constitution in 1787. Bork objected to various Supreme Court decisions that he believed created new rights. From his point of view, this is the job of Congress, the state legislatures, or the constitutional amendment process. For example, Bork had noted in his writings that there is no right of privacy specifically mentioned in the Constitution. He objected to the 1973 Supreme Court ruling that recognized a privacy right for women, which allowed them to choose whether or not to have an abortion. He also questioned prior court decisions on pornography, the exclusionary rule, and prayers in schools.

Liberal senators were enraged over the Bork nomination. Democratic Senator Edward Kennedy protested that, “Robert Bork is wrong on civil rights, wrong on equal rights for women, wrong on the First Amendment and Ronald Reagan is wrong to try to put him on the Supreme Court.”

After a series of grueling hearings before the Senate Judiciary Committee, Robert Bork was rejected as an appointee to the U.S. Supreme Court. Conservatives cried foul, claiming no previous nominee had ever undergone such long and grueling questioning on issues of judicial philosophy. They also charged that liberal interest groups outside of Congress had targeted Bork for defeat because of his conservative beliefs. Senate liberals argued that Bork’s judicial philosophy placed him too far outside the mainstream to be a Supreme Court justice and that they had the right to reject him under their powers of “advice and consent.”

When Justice Thurgood Marshall, the Supreme Court’s only black justice, retired in 1991, it was President George Bush’s turn to nominate a justice. He chose Clarence Thomas, a federal judge and another African-American. Unlike Marshall, Thomas had a very conservative judicial philosophy and his nomination soon ran into trouble.

Anita Hill, a black woman and law professor, accused Thomas of sexually harassing her years before when they had worked together. In televised hearings, she gave a graphic account of her charges, which attacked the character of the nominee. For his part, Thomas refused to answer the committee’s questions about the charges, but likened the hearings to a “high-tech lynching,” a clear reference to a time in America when black men suffered hangings at the hands of white mobs.

At the end of the process, Clarence Thomas was confirmed as a Supreme Court justice, but charges and countercharges over the hearings continued. Conservatives claimed that Thomas had been unfairly attacked because of his judicial viewpoints. Several women’s political groups claimed that the committee was sexist in its treatment of Hill. Liberal Democrats accused the president of cynicism by appointing to the court an African-American conservative, a political viewpoint shared by relatively few blacks.

As president, Bill Clinton nominated two Supreme Court justices, Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994. As moderates, both were confirmed by a Democratically controlled Senate and had bipartisan support. But when the Democrats lost control of the Senate to Republicans in 1994, new controversy erupted about the judicial confirmation process.

The process of selecting federal judges begins when the president receives recommendations from senators for candidates from their states. The president then makes nominations, which are forwarded to the Senate. The nominations are referred to the Senate Judiciary Committee, chaired by a member of the majority party. Committee members send the nominees questionnaires about their backgrounds and writings, which are scrutinized by the committee. The nominee may go through one or more hearings where they are questioned by the committee. The committee then makes its recommendations to the full Senate, which votes on the appointment.

When President George Bush left office in 1993, well over 100 federal judge’s positions were unfilled. There were similar numbers at the conclusion of President Clinton’s term. Chief Justice William Rehnquist in his annual message on the federal judiciary pointed out that the number of vacancies was hurting the work of the federal courts and urged that they be more quickly filled.

Democrats charged that the reluctance to fill the vacancies is payback for the rejection of Judge Bork by the Democratic Senate during the Reagan years. They also charged that the Senate Judiciary Committee, with its Republican majority, is delaying the appointments of well-qualified and moderate nominees by making overzealous background checks and holding drawn-out hearings. They also complained that Republican leadership has delayed a full Senate vote on some nominees even after the Judiciary Committee has made a recommendation.

Republicans disagree, claiming that the Judiciary Committee is merely exercising its constitutional power of “advice and consent.” They assert that the review process takes a long time to adequately check the backgrounds of nominees and to assure that judges who are selected will not be “activists” but will follow the law and Constitution.

The battles over the Supreme Court and the federal judiciary demonstrate that partisan politics have become a significant factor in the selection process in recent years. This development raises important questions. What factors should be taken into account when selecting a federal judge? Should a nominee be rejected on the basis of his or her political beliefs? What role should outside interest groups play in the process?

An even more important question is: What effect might such partisan politics have on the independence of the judiciary? Will qualified judicial candidates censor their writings or conform their opinions fearing that, if they do not, a federal judgeship is out of the question? Will qualified candidates refuse to even try to become judges rather than face a prolonged and bitter selection process?

The founders of our country saw the importance of having judges make decisions about law and the Constitution free from political pressure. Only time will tell if their wisdom will survive.

How effective has federal selection methods been in preserving an independent judiciary?

All federal judges are appointed by the president, confirmed by the U.S. Senate, and serve for life. There is only one way under the Constitution that federal judges can be removed: The U.S. House of Representatives can vote to impeach any federal judge for “treason, bribery or other high crimes or misdemeanors.” The judge is then tried by the Senate. To remove the judge, two-thirds of the Senate must vote to convict. Only 13 federal judges in our history have been impeached by the House and just seven convicted by the Senate. All have been convicted for alleged criminal behavior. None has ever been convicted for making unpopular decisions or for holding an unpopular judicial philosophy.

Comparing and Contrasting Missouri's Nonpartisan Court Plan and Federal Selection of Judges

1. Which plan—Missouri or the United States—allows for a more independent judiciary? Why?

2. What aspects, if any, of Missouri's Nonpartisan Court Plan would you like to see the federal government adopt? Why?

3. What aspects, if any, of the federal selection plan would you like to see Missouri adopt? Why?

4. Do you think appellate judges at either level should be elected by the people?

5. How do the ways both Missouri and the federal government currently select judges protect the rights of the minority?

6. How do both systems promote an independent judiciary? How successful have they been?

(A simulation on the nomination and approval of a United States Supreme Court Justice)

"Confirmation" was developed to give students a greater understanding of the process of selecting a new justice to the United States Supreme Court, from the nomination process until final confirmation by the United States Senate. This simulation would be effective for secondary students from grades nine through twelve. Every effort has been made to make the activities content neutral and get students to move from the knowledge level to one of application and synthesis (Bloom's Taxonomy). In addition, the simulation aligns with the majority of objectives found within Goals One through Four of the Missouri Show Me Standards.

"Confirmation" is comprised of three modules and will take approximately two to three, 55 minute class periods, depending upon the prior knowledge of the students and the amount of time spent on each module and the associated follow-up questions.

Lieberman, Jethro K. A Practical Companion To The Constitution. University of Chicago Press, 1999.

Patrick, John, J. The Supreme Court Of The United States, A Student Companion. Oxford University Press. 2001.

Smith, Duane ed. We The People, the Citizen And the Constitution. Center for Civic Education. 1998.

Prior to starting the simulation, it is important that all participants agree on a few rules of "academic engagement" in order to keep discussions in perspective and prevent personal comments. "Confirmation" may deal with a wide range of topics and some individuals may have strong personal beliefs. Therefore, it is important that specific rules be established so that individuals do not take comments personally and can keep the simulation objectives in perspective. Feel free to keep, add to, or modify the following rules to fit your individual class.

4. Everyone will get a chance to express their point of view, but do not "cut another person off while they are speaking."

5. Do not personally attack the individual speaking. Disagree with their statement, or thesis. Be specific with your challenge.

The purpose of this module is to examine Article III, and Article II, Section 2, of the United States Constitution for formal qualification to become a justice of the United States Supreme Court. The second half is to determine informal qualification as expected by citizens today.

Divide the class into four equal or semi-equal groups and have them respond to the following questions. Each group should be able to support their answers. After approximately 15-20 minutes, review each group's response to questions one and two. For questions three have a representative from each group place their qualifications on the board and explain their list. Compare and contrast all four lists.

List of informal qualifications from Module One, and Student Handouts One and Two.

The President has called together his most trusted advisors and asked them to review a short list of candidates and select one which he will personally nominate as a justice to the Supreme Court. This candidate will then appear before the Senate's Committee on the Judiciary for recommendation to the Senate floor.

Using the same groups from module one, or creating new groups, provide each individual with a list of informal qualifications from Module One and a profile work sheet (Student Handout One). It will be the objective of each advisory group to create the perfect candidate to recommend to the President for nomination. To aid each group in creating a candidate, distribute a profile of the current court (Student Handout Two). Each group must be prepared to defend (testify on behalf of) the individual they recommend.

Completed Supreme Court Nominee Profile sheet. Writing implement and paper for creating questions to ask nominee.

The objective of this module is to allow each presidential team to prepare their candidate for the Senate Committee on the Judiciary and allow the members of the Judiciary committee time to review each candidate's vitae (profile sheet).

Assign a number to each of the four teams. And then post the following schedule on the board or overhead:

Round one: Team 4 candidate testifies, teams 1&2 are Senate Committee on the Judiciary.

Round two: Team 2 candidate testifies, teams 3&4 are Senate Committee on the Judiciary.

Round three: Team 1 candidate testifies, teams 2&3 are Senate Committee on the Judiciary.

Round Four: Team 3 candidate testifies, teams 4&1 are Senate Committee on the Judiciary.

Distribute a copy of the each of the completed Supreme Court Justice Profile sheets to each member of the class. All students should be prepared to ask one question of each candidate they review during a hearing. Questions should focus on qualifications and positions regarding the interpretation of the U.S. Constitution. In addition, each of the four teams will select one individual to act as the actual candidate to testify in front of the Senate Committee on the Judiciary. Time should be given to allow the others in the team to coach the candidate on possible questions and appropriate responses.

Completed Supreme Court nominee profile sheet, prepared questions, and materials for note taking. One stop watch.

This module will give the students the opportunity to see and understand the hearing phase of the confirmation process and the power of the Senate Committee on the Judiciary.

Arrange the room for the hearing process. It is suggested that the committee have one row of seats and then one additional seat for the nominee. Prior to starting each round, select one individual to serve as committee chair to run the hearing. To make the process more realistic, you may ask each of the committee members to align themselves to either the Republican or Democratic Party. The committee chair must represent the majority party. Using the schedule from module three, setup for round one. Have the nominee approach the committee with one additional committee member. This person will introduce the nominee to the committee and then step aside. The committee will have ten minutes (time kept by third party timer) to interview the candidate. When the hearing is over, the committee will vote to either recommend the nominee to the full senate or reject the nominee. Follow the same procedure for the additional three rounds.

This final module is designed to debrief the simulation and determine knowledge gained regarding the confirmation process.

Directions: Use this sheet to create a profile for your nominee. When your team is finished submit one "clean copy" to your instructor for duplication.

Personal information: (Include such items as age, birth state, marital status, children, hobbies, etc.)

Professional positions held: (Include legal, judicial, and government positions.)

Significant appellate rulings: (How would they have ruled on such cases as affirmative action, abortion, federalism, search and seizure?)

Smith Court	Age	Appointed By	Party	State
William Smith Conservative (Chief Justice)	80	Reagan	R	IL
Sandra McCabe Conservative/Liberal	79	Reagan	R	SD
Tony Palco Conservative	75	Reagan	R	NY
Tony Schriver Moderate conservative	76	Reagan	R	CA
Richard Shaw Liberal	66	Bush	R	NH
George Jones Conservative	57	Bush	R	GA
Dorothy Greenburg Liberal	72	Clinton	D	DC
Daniel Kiley Conservative/Liberal	67	Clinton	D	MO