30 September 2010

 

As lawyers and judges, we have a unique responsibility. The ability of the people of Missouri to seek and find justice, for anyone, at any time, is ours to preserve and protect. Despite our individual interests, this is our common calling. This must be our constant focus.   

Sometimes, I am afraid that we overlook the obvious. We are living in the greatest civilization in the history of humankind. Even in this time of economic challenge, education, art and health care are flourishing. So are charitable activities. All of these are supported by a free market economy that can exist only within the certainty of law. Goods and services can be bought and sold, money can be exchanged, people can plan for the future, but only because the rule of law has been so firmly established that we seldom even think of it.

The extent to which we enjoy personal liberties is also at an all-time high. It has been said that a civilization can be judged by the extent of the individual freedom enjoyed by its citizens. No civilization in the history of the earth has protected the individual rights of its people by the rule of law as we have – rights so commonly accepted that we take them for granted.    

Certainly, our nation faces problems of every kind, each calling for further progress. But at no time has any civilization done more than ours to advance the quality of life of its people; mostly, as a result of law; mostly, as a result of dedicated lawyers and impartial judges.

As lawyers and judges, we are part of something very important and something very special. There is honor in what we do. There is honor in representing an individual who has been injured, and there is honor in defending the person or business accused. There is honor in prosecuting on the public’s behalf as there is honor in defending whoever is charged. There is honor in assisting the people of Missouri in their personal and business lives.

Judge Lawrence Cooke, a chief justice of New York, once said it this way, “To determine the rights, property, life, and civil duties of people is a sacred work.” Each of us, lawyer or judge, must remember the high honor of our calling, and each of us must commit ourselves to defending our profession and its honor against all threats.

Continued advancement of our state and our nation depends on us keeping the faith and support of the people in our courts and in our system of law. That, in fact, justice is not merely available, but routine, to each individual, rich or poor, black or white, plaintiff or defendant, prosecutor or accused, Republican, Democrat or independent. It is our job, collectively and individually, as lawyers and judges, and despite all pressures to the contrary, to keep our focus on a system of law that always seeks “justice first.”  It is not good enough to talk about Atticus Finch in the movies. We all must be Atticus Finch in real life.

Last year I spoke about the assault on our courts by various special interest groups, many well-intentioned, but so focused on their own special causes and their own ideologies that they miss the damage they will cause if they turn our courts into just another arena for the political battles that divide our country. Those political and ideological battles cannot be avoided. It is our strength as a democracy to allow the full debate and resolution of those issues before and by the people. But that is a process for political leaders to be pursued in the legislative and executive branches of government. It is not a process to be confused with the fair and just resolution of individual disputes, each case according to its own evidence, each case according to the law.

We have been spared an attempt to eliminate the Missouri nonpartisan merit selection plan in this November’s election. But the bigger fight is not over, and we must ever be on our guard. The special interests will circle and reload in ingenious ways to capture our courts to be used as tools for their purposes.

In Colorado, the campaign theme is “clear the bench” to defeat all supreme court judges up for retention. A similar effort is taking place in Iowa, where more than $1 million is expected to be spent in this election cycle. Individual judges are being targeted in Illinois and Kansas. A federal lawsuit was filed in Kansas to stop lawyers elected by the bar from serving on their nonpartisan nominating commission. A similar lawsuit was dismissed by a federal district court in Alaska and is now on appeal in the 9th Circuit.

It is shocking how much money is finding its way into judicial campaigns. Judicial fundraising more than doubled, for the 1-year period  from 1990 to 1999 to the 10-year period from 2000 to 2009, from $83.3 million to $206.9 million. In Michigan, races for two seats on the Supreme Court may result in $10 million being spent this year. The Brennan Center for Justice at New York University estimates that the spending in this year’s retention elections may exceed that spent during the entire previous decade.

It also is shocking that most of this money comes from a small group of big spenders. A study of 29 elections in the nation’s 10 most costly states showed that the top five spenders in each race invested an average of $473,000 while the remaining 116,000 contributors averaged just $850 each. There can be no way that this much money from so few people can be good. In fact, a Harris poll released this September found that more than 70 percent of Americans, both Democrats and Republicans, believed that campaign contributions have a significant impact on courtroom decisions. Big money in judicial elections is a scandal.   

In Missouri, the nonpartisan merit selection plan has been the cornerstone of preserving the integrity of our urban and appellate courts. Combined with retention elections, it protects judges from undue political and special interest influence while still keeping them accountable to the people. Specifically, it has protected our judicial selection process from being taken hostage by the political-financial-consulting triad that dominates the other two branches of government.

No wonder people seeking to assert influence over the way lawsuits are decided want to change the Missouri Plan. No wonder they found little to no support from the people of Missouri. No wonder so many lawyers and citizens rose up to its defense.

Over the past two years, many people have examined the plan to see if improvements could be made or compromises could be found. Changes to the plan need not necessarily be feared. The question is whether any given change drives the plan to greater integrity or subjects it to greater political manipulation; whether any change leads to a greater balance or threatens imbalance or advantage from one perspective or another. There was no consensus found, however, between those seeking change and those defending against it.

The Missouri Bar conducted polling on what changes to the plan resonated with the people of Missouri – not the politicians, not the lawyers, not the judges, not the big-money donors or high-priced consultants, but the people of Missouri. The answer was clear. The people wanted more transparency.

The Court listened and considered. Already this past year, we changed the rules to allow release of the names of those candidates chosen for interviews. By order today, the Court goes much further. We are making three additional changes to the rules that govern the operations of the nonpartisan nominating commissions. We are opening the nomination process to the public in a way never done before.

First, and foremost, interviews of judicial candidates will be conducted by the commission as a whole, and those interviews will be open to the public. To some extent, confidentiality is necessary for there to be a full and frank discussion among commission members about the strengths and weaknesses of various candidates. But candidates for judicial office should be willing to stand before the commission in public and state why they desire to serve as a judge and answer questions from the commission. The people of Missouri deserve to hear the candidates’ statements, and they deserve to hear the questions asked by the commission and the answers given. Now, they will.

Some have suggested that public interviews may inhibit certain individuals from applying for judicial office. Worthy candidates will not be deterred so easily. And we all know that the single greatest deterrent to qualified lawyers serving in the judiciary is continued inadequate compensation.

Second, the number of votes received by the three successful candidates will be made public. Seven, six, five or four votes; for the first time, the people of Missouri will know the level of support on the commission for each of the three candidates whose names are forwarded to the governor.

Finally, the commission will encourage members of the public to nominate candidates. The process should seek out as many qualified individuals as possible. It need not be limited to lawyers and judges who apply on their own behalf, or nominations by commission members from inside the process. Anyone in Missouri, from any walk of life, should and will be encouraged to nominate well-qualified judicial candidates.

These are significant and meaningful changes. They have not been made lightly. They have been made to strengthen the finest judicial selection plan in the country. They show the Court’s willingness to listen to the concerns of the people of Missouri. They show the Court’s willingness to make changes that enhance the integrity of the judicial system and that protect the honor of the rule of law. But most importantly, these changes will allow the people of Missouri to see for themselves how our nonpartisan merit selection plan works and why so many of us think it is crucial for justice in Missouri.