It has been a decade since an attempt to change how Missouri selects its judges – especially the ones serving on the Missouri Supreme Court. The way we select and retain our judges is known as The Missouri Plan. Adopted in 1940, the goal was to remove politics from the judicial selection process.
It is failing.
Under the Missouri Plan, the governor appoints three citizens to serve on the judicial selection commission. They are joined by three Bar-elected members of the Missouri Bar Association, an organization generally regarded as liberal. The seventh member is the chief justice of the Missouri Supreme Court, who serves as chairman. The lawyers have a majority and thus control the selection process without being accountable to Missourians.
Complicating matters is the interpretation warfare being waged between liberal legal minds in organizations like The Trial Lawyers Association and more conservative thinkers like those in The Federalist Society. The legal profession has gotten where it can no longer agree on a means of interpreting the Constitution, much less our laws. For most of our nation’s history judges adhered to a strict interpretation of the Constitution known as “originalism.” This interpretation seeks to determine what the Founders literally meant by the words they used in constructing the Constitution.
But in recent decades, moral relativism, or the view that truth does not exist or cannot be known, has invaded our law schools. This philosophy has given them a sophisticated sophistry that enables them to depart from “originalism” and instead refer to the Constitution as a “living, breathing” document that can be changed or interpreted in myriad ways.
This relativistic philosophy is a dangerous way of doing business because it encourages unelected judges – not the people – to change the meaning of what the Founding Fathers wrote. In other words, they just make it up as they go along. Such wrong-headed thinking invites chaos, but the temptation of such unbridled power is intoxicating.
I would argue this type of approach displeases God because absolute truth exists. God’s Word says, Jesus is “the way, the TRUTH and the life.” God is a God of law and order. God has ordained government, which does not bear the sword in vain. But God also expects government to operate within the limits set by Him.
This is the fight that is unfolding before us at the U.S. Supreme Court following the death of Justice Ruth Bader Ginsburg. Ginsburg was a liberal, who held to an evolving Constitution. President Donald Trump has said he will nominate an originalist, who will interpret the Constitution as written by the Founders.
I first noticed flaws in the Missouri Plan when Matt Blunt was governor. Take, for example, Missouri Supreme Court Judge Patricia Breckinridge. She was the only nominee of three finalists believed to be a moderate (the other two were believed to be liberal Democrats). These nominees did not reflect the views of Governor Blunt, a staunchly pro-life conservative, duly elected by Missourians. But he had no choice.
Breckinridge has been fairly conservative in her decisions – until recently. In July she joined the other five Democrat-appointed judges in ruling that Missourians must fund Planned Parenthood abortions. Judge Zel Fischer, a Missouri Southern Baptist, was the lone dissenting vote in this outrageous travesty. Only one Planned Parenthood clinic remains open for abortions in Missouri. Located in St. Louis, the killing will continue and each one of us are funding it. It is a racist abortion clinic because a disproportionate number of abortions are minorities. This horrible ruling occurred at a time when abortions in Missouri are declining.
Which brings us back to The Missouri Plan and the Nov. 3 election. Breckinridge is the only judge up for a retention vote. Missouri has become an increasingly pro-life state, but no Supreme Court judge has ever been voted out of office since The Missouri Plan began. It will be interesting to see if November’s outcome changes this trend.
Perhaps the time has come to reduce the number of lawyers on the judicial selection commission by one. Allow a duly elected governor to name a fourth citizen to serve. This will improve accountability.
Lest you think this issue is not worth pondering, consider this: The next Missouri governor will have at least three appointments to the Missouri Supreme Court, a move that could dramatically change the high court’s makeup. The time has come for more of the commission’s influence to be dictated by Missouri citizens and an elected governor, not unaccountable lawyers.