by Jeff Roorda
I have not talked to a single person who is happy about the confirmation process utilized in the elevation of Justice Kavanaugh.
And why should they be?
The process was a national disgrace better suited for TMZ or Real Housewives of Capitol Hill.
Republican and Democratic voters alike were left with a bitter taste in their mouths. No matter who you were rooting for or against in the hearings, the way your guy or gal was treated by “the other side” left you aghast.
Which is precisely why the selection process for the most influential members of our judiciary is no place for partisan proxy warfare to play out.
It really is quite unseemly and fundamentally un-American to politicize and scandalize the manner through which we select those who would fulfill such a sacred office.
It’s not the way the Founding Fathers intended things. They deeply desired an independent, apolitical judicial branch that would check the political “factions” that were sure to emerge in the legislative and executive branches.
Alexander Hamilton famously described the judiciary as the “least dangerous” branch of government. Hamilton wrote extensively about the importance of an autonomous judiciary in Federalist Papers 78 through 83. In Federalist 78, he opined, “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.” And, in Federalist 81, he noted, “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature.”
The framers of the Constitution meant for the dignity and the sanctity and, for that matter, the sovereignty of the Supreme Court to be held sacrosanct. They entrusted the executive with nominating Justices and the Senate with confirming them with the limited duty of ruling out those positively unfit to serve. But, it was meant to be a reverent, deferential process that heeded to the duty of the other two branches to act as a stopgap check on the judiciary and nothing more.
How far asunder from that notion we now find ourselves.
There is a better way to maintain a non-partisan court. In fact, we invented it here in the Show-Me State and it is likely our greatest contribution to democracy as a state.
It’s called the Missouri Plan.
And it works.
The Missouri Plan should become The American Plan.
I know what you’re thinking. In this hyper-partisan era, there is no way that we could bring enough states together to embrace and ratify the Missouri Plan in the selection of federal judges through a Constitutional amendment.
That’s okay. We don’t have to. The President could empanel one on his own through executive order. Start with SCOTUS and appoint a judicial selection commission made up of three lay members appointed by the President, ask the American Bar Association to select three attorneys for the commission and appoint the Chief Justice to chair the commission, just as we do here in Missouri and in all the other states who have emulated our plan.
The President would get a list of three panelists from the commission and he would select his next nominee from among those panelists.
Predictably, the Senate would protest and demand their chance to make a mockery of things through a no-holds-barred confirmation process. Ignore them.
The President should simply tell them “love ‘em or leave ‘em…my nominee will not stand for inquiry. Either confirm him (or her) or leave the position vacant. We’re done with the three-ring circus.”
The Senate wouldn’t like this but, too bad. The debate would pivot to rancor over the process rather than the nominee. And, I believe, the process would will out. With the Chief Justice and the barristers appointed by the ABA serving as gatekeepers for an independent and competent judiciary, and the Presidential nominees serving as counterbalances to ensure the White House gets nominees who are of like ideology, the finalists would be above reproach or, at the very least, the process would be.
The Senate is good at debating process. They’ve proven recently, they’re not so adept at debating personalities.
We need to return dignity, and thereby, confidence to the highest court in the land. We don’t need to know if a nominee ever made a fart noise in the whimsy of his youth. And, if his indiscretions exceeded youthful hijinks, a well-balanced commission would never advance his name for fear that it would deteriorate the reputation of the bench.
That is how to keep the courts sacrosanct, not through prime-time televised burlesque shows.
This is not just me making an academic argument in a vacuum. I spent the entirety of my tenure in the Legislature defending the Missouri Plan. And, I feel so confident in the plan that, if elected County Executive, bringing Jefferson County under the non-partisan court plan will be a Day 1 priority in my administration.
If it’s good enough for Missouri and all the other states that have adopted the plan, then it’s good enough for Jefferson County…and, for America.
Jeff Roorda is a former four-term democratic state Representative and running for Jefferson County Executive.