JEFFERSON CITY, Mo. – The Appellate Judicial Commission is raising the eyebrows of some on the right at a time when some Republicans question the effectiveness of the Missouri Court plan.
Wednesday night, the commission selected private practice attorney Benjamin Lipman, Judges Lisa Hardwick and Judge W. Brent Powell as their three choices to fill the vacancy on the Missouri Supreme Court left by the late Judge Richard Teitelman, who died in November. Gov. Eric Greitens has 60 days to choose from one of those three to become the next judge on the state’s highest bench.
However, only Powell is considered a conservative choice by many Republicans. Missouri Republican Party Chair Todd Graves hired Powell twice after they met in Washington D.C. at the University of Virginia School of Law, first when he became Platte County prosecutor and second when he became a U.S. Attorney and has a lengthy professional relationship with him.
“He’s a good lawyer, a good judge, and a good conservative,” Graves said.
On the flip side, some argue Hardwick and Lipman are not conservative. Lipman, for instance, has donated to multiple Democratic candidates for various offices in the past, including U.S. Sen. Claire McCaskill and former Treasurer Clint Zweifel. Hardwick is actually on the panel for the second time in her judicial career, the first being in 2008, when then-Gov. Matt Blunt selected Zel Fischer for the role.
James Harris, who has voiced his opposition to the court plan in the past for being too far under the purview of trial attorneys, lambasted the choices presented to Greitens by the commission.
“The Appellate Judicial Commission is controlled by liberal special interests who are trying to force our governor to select their preferred candidate by only nominating one conservative, Judge Powell, and two liberals,” Harris said. “This panel shows that the Missouri Plan is broken.”
The state’s lawyers elect three lawyer members of the commission, and the governor picks three others. The current chair of the Supreme Court, Chief Justice Patricia Breckenridge, chairs the commission. Two districts, the Eastern and Western District, have also dominated panel nominations. Stephen Limbaugh, the last judge from the Southern District nominated to the Supreme Court, ascended to the bench in 1992.
Dana Tippin Cutler, the president of the Missouri Bar, stressed while members of the Bar voted for those lawyer members, the Bar did not have a direct influence on the plan. However, the Bar does defend the plan, and Cutler called all three of the applicants well qualified for the position.
Rep. Joe Don McGaugh, the chair of the House Judiciary Committee, took a far more muted approach and even argued for the current court plan, though he admitted it may need a few alterations. Some of the changes could involve shortening the time in between a governor’s appointments and change what happens should a governor reject the panel.
The constitutional amendment establishing the Missouri Plan came into effect when governors could only serve one term of office. Warren Hearnes was the state’s first two-term governor when he served from 1965 to 1973. The way the dates are staggered for the governor to appoint people to the commission means a two-term governor, like former Gov. Jay Nixon, can put three appointees onto the commission for one six-year term. A governor gets to select a new appointee to the commission biennially, but Greitens will not select his first person to the commission until after he has served almost two entire years in office when Nick Robinson’s term expires on the last day of 2018.
Greitens can also select no one from the panel, but if he fails to do so, the commission then selects one of those three to fill the Supreme Court vacancy. No governor has ever sent a panel back to the commission since that provision went into the constitution in the 1950s.
“The nonpartisan court plan works, but I think there are some issues where we can kind of clean up the edges,” McGaugh said. “I’ve had frank discussions with several members of the House and we’re open to ideas about making some 21st-century changes.”
Cutler also noted the Bar has evaluated changes in the past and would examine the impact of further changes.
“Over the 76-year history of the Missouri Non-Partisan Court Plan, changes have been implemented to improve the process,” Cutler said. “We would consider additional changes on a case-by-case basis to make sure the people of Missouri continue to have skilled, fair and impartial judges and to prevent partisan politics and money from being injected into our state’s courts.”
Several other Republicans besides McGaugh also weighed in, including Graves. He said he did not want to “characterize” any of the selections for the panel, but that he was not a fan of the supposedly nonpartisan process.
“I continue to have concerns about the court plan,” Graves said.
Speaker Todd Richardson also said he did not want to infer the character of any of the potential Supreme Court judges because he did not know any of them personally, but added the House may form a committee to reexamine the court plan.
“There’s going to be a lot of interest in reviewing the efficacy of the Missouri plan and whether it still works today to produce the kind of judges the public should expect on the bench,” Richardson said. “Whether that’s a process that starts this session or in the interim, we’ll have to visit with the caucus about it and see what makes the most sense.”
“This is going to give us a real fair chance to see how this process is working now,” Greitens said, after noting he would interview each applicant.
In the past, Greitens policy director Will Scharf has noted Greitens wanted to change the nonpartisan court plan. Greitens’ future four-odd years in the governor’s office to come and Nixon’s prior eight years in the role illustrate precisely why some conservatives believe the plan needs changing.
However, Democrats have defended the plan, noting other states have followed in Missouri’s footsteps to adopt highly similar court selection plans.
“Clearly there are other people that think this is a good system and we have to keep politics out of our judicial system,” House Minority Floor Leader Gail McCann Beatty said.
“Every member of that panel is qualified to do that job,” Rep. Gina Mitten added. “The purpose of the Missouri Plan was to not politicize our judges, not to politicize our courts and this argument… does nothing more than further the idea that our judges should be as political as our legislators and that makes no sense.”