The Essentials and Expendables of the Missouri Plan: The 2009 Earl F. Nelson Lecture

This speech was presented by Sandra Day O 'Connor at the University of Missouri School of Law on February 27, 2009. It is the 2009 Earl F. Nelson Lecture and was part of the symposium titled Mulling over the Missouri Plan: A Review of State Judicial Selection and Retention Systems. The author has modified the speech and added citations for publication purposes. It is an honor to have been asked to give this year's Earl F. Nelson Lecture, and I want to thank the University of Missouri School of Law, the Missouri Law Review, and Dean Lawrence Dessem for the invitation. I am conscious of the history of this lecture series, which started in 1955 and can claim a number of Supreme Court Justices, accomplished jurists, academics, politicians, and public figures as speakers. (2) I am happy to join their ranks. And having seen the list of past speakers, I noticed that there were a couple of years where two speakers shared the podium, so I appreciate you trusting me to give this year's lecture by myself. We are here to discuss a matter of importance to me. The question of how we choose our judges, whom we entrust to uphold and interpret our laws, speaks to foundational principles of our judiciary and, indeed, our nation. But it is a question that our states have been unable to answer with a unified voice. While our federal judges are selected through presidential appointment, by and with the advice and consent of the Senate, the states of our nation have reached no consensus regarding how to select judges. Some states elect their judges through partisan elections, while others use nonpartisan elections; some states use legislative or gubernatorial appointment, and some of those states use judicial nominating commissions to help the appointment process. Most states are not of one mind and use some combination of these selection methods. (3) I do not doubt that the various methods of judicial selection are all guided by the same goal: an impartial administration of the law through judges who follow the law. Most of our disagreements focus not on whether we share these goals but on how best to achieve them. These disagreements are not likely to be resolved today, so I will be modest in my ambitions for this speech. I will focus on Missouri's special role in this debate, both as a leader of judicial independence and as a target for those who would marginalize it. The first part of my speech will focus on the shared history of our nation and of Missouri. Both this nation's and this state's careful guarding of judicial independence can be traced back to the grave abuses each experienced in the past. These histories provide cautionary tales and provide a backdrop for understanding the values that we sought to protect in implementing our current methods of judicial selection. My second objective is to stress that, as instructive as this past is, we are at a new and critical point in history. While the debate about judicial selection has persisted for centuries, the climate has changed dramatically. In states that elect their judges, the expense and volatility of judicial campaigns have risen to obscene levels. Money is pouring into our courtrooms by way of increasingly expensive judicial campaigns. Litigants are attempting to buy judges along with their verdicts, and the public's trust in our courts is rapidly deteriorating as a result. (4) I believe these new circumstances should reorient and reinvigorate the debate over judicial selection. My third and final goal is to discuss, in light of these histories and expanding threats, what we can do better to protect the independence and reputation of our judiciary, across the nation as well as here in Missouri. While I favor a merit-selection system, which has become synonymous with Missouri, (5) it is important to remember that the plan's value relies entirely on its premise of removing, or at least diminishing, (6) the politics in judicial selection. …