Issues in Judicial Selection


This letter appeared in the June-July 2002 issue of the Louisiana Bar Journal.

This item may be cited as M. R. Franks, Letter to the Editor: Issues in Judicial Selection, 60 Louisiana Bar Journal 5 (June-July 2002).

Copyright © 2002, M. R. Franks

Dear Editor:

If you like the way they treat you in some federal courts, you're gonna love practicing before appointed judges in state court, too.

I refer to Marta-Ann Schnabel's article in the April-May 2002 issue of the Louisiana Bar Journal. She touts the Missouri Plan for judicial selection.

Under the Missouri Plan, an appointed judicial nominating commission consisting of several judges, several lawyers and one or two nonlawyers (bankers or insurance types, to be sure) screens applicants for judgeships and nominates three persons to fill a judicial vacancy. The governor must then appoint one of those three, and he cannot go outside the list.

After the judge has served his first term of office, he comes up for re-election - but not in a traditional, candidate-versus-candidate election. Rather, the people are asked, "Should Judge Swithers be retained in office? Yes or no?"

One problem with the Missouri Plan is that lackluster, appointed nominating commissions far removed from the people choose lackluster judges who can be counted upon not to rock the boat. It's a good-ol'-boy system in which the politics of the country club are substituted for the politics of the democratic process. Far from getting politics out of the judiciary, it substitutes a new and far more sinister politics, one lacking transparency and distant from the people. Second-rate lawyers in back rooms would pick third-rate judges.

An appeals court or state supreme court selected by such a method usually presents a unified bland face lacking the vitality of dissent and disagreement among its members.

The Louisiana Supreme Court is chosen by regular political elections - candidate versus candidate. The result is a heterogeneous court representing a divergence of philosophies. Decisions sparkle. Dissent abounds.

Some of Louisiana's finest and most courageous judges would never have made it past the judicial selection process that Ms. Schnabel's article envisions.

As for the periodic "elections" provided under the Missouri Plan, the whole scheme is more reminiscent of an old Soviet-style election - "Should Josef Stalin be retained in office? Yes or no?" - than it is of the open selection of candidates we've come to associate with free government in America.

Advocates of the Missouri Plan actually intend the ballot question to be loaded to favor re-election of judges, and the election itself to be a charade, an illusion to deceive voters into believing they have a meaningful voice in the process. The judge's name is unopposed on the ballot. With no opposing candidate to point out the incumbent's deficiencies, those deficiencies never get publicized. Voters are simply expected to re-elect judges unquestioningly, in effect making the committee's nominees lifelong appointees to the bench.

The problem is, judges who think they're in for life can become arrogant. If the prospect of a mediocre but overbearing judiciary sends chills down your spine, you may prefer to keep Louisiana's judges answerable to the people in meaningful free elections. If so, you need to be vocal and stand up for democracy now.

M. R. Franks
Associate Professor of Law
Southern University Law Center
Baton Rouge

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Copyright 2002 by M. R. Franks - ALL RIGHTS RESERVED