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The Missouri Plan is for Louisiana

From time to time the issue of judicial selection comes up, and it surfaced again with a speech by Louisiana Supreme Court Chief Justice Pascal Calogero threw some cold water on the idea of at least partial appointment of Louisiana state jurists. Of course, Calogero, having been elected four separate times to the Court might be forgiven for not advocating the system that got him there which, in fact, is one of the rarest used in our states for the Supreme Court, fixed election by district.

Basically, there are three ways to select judges among the states, with variations to each. First, there is election, either partisan or (as in Louisiana) nonpartisan in nature. Second, there is appointment, either by a majoritarian branch of government or a combination of both, with or without a nonpartisan panel to vet appointments to forward to the appointing institution. Third, there is the combination of appointment/retention (the “Missouri Plan,” named after the first state to implement it), which generally features an appointment followed up with a retention election some years in the future, essentially a referendum on the candidate.

The group to which Calogero spoke, the Louisiana Organization for Judicial Excellence, basically supports a form of the Missouri Plan. There are arguments both ways on the election and appointment methods that this form tries to take from both their best aspects. Elections promote greater citizen control over judges, while appointing reduces the possibility that judges and candidates would allow themselves to be swayed on the bench by special interests, possibly in a corrupt fashion, and may improve the quality of judges relative to those who get there by only having to win enough votes.

Politically and structurally, Louisiana may seem particularly susceptible to an uneven quality of judges. With such a politicized environment as is Louisiana’s, the fact that judges may hear cases involving campaign supporters and donors to his surrogate campaign (by law, judges cannot raise money or ask for explicit support for campaign purposes, so supporters will form their own independent committees to do it on the judicial candidate’s behalf) may interfere with judicial impartiality (one reason perhaps why both the Louisiana Trial Lawyers’ Association opposes this, because it would lose undue influence over the composition and decisions of the state judiciary).

The LOJE plan would have certain interest groups and representatives of the bar select three names to forward to the governor who would pick one, with choices made mindful of demographic representativeness. Subsequently, a retention election would occur – a plan similar to the model plan set forward by the American Judicature Society.

Specifying the groups, as the LOJE has done, probably is not the most flexible way of doing things. Rather, a commission could be set up with gubernatorial appointees requiring Senate confirmation, with members staggered serving short, non-recurring terms. The amendment specifying this could mandate some members being sitting jurists, and the remainder evenly divided between Republican and Democrats, with perhaps a political independent or two thrown in for good measure. This would assure for a good mix of interests without any one having great influence.

While those against any appointive component to judicial selection might argue the sacrifice of democracy is more than the assurance that an appointive system would produce higher quality judges, it should be obviously that such a system still reduces the chances of inferior judges being elected, where the only qualification for service is how many votes you can win (and citizens will get their chance to vote in a retention election). In a state such as this with its checkered political history, we need all the assurance of quality we can get.

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