Charlie J. Harris, Jr.
Seyferth, Blumenthal & Harris, L.L.C.
Kansas City

In the January-February 2008 issue of this publication, I wrote a column entitled, “When Good People Have Bad Ideas.” In that column, I explored “ill-conceived measures” then pending in the Missouri General Assembly that would have injected partisan political concerns into Missouri’s Non-Partisan Court Plan. I also urged all Missouri Bar members to:

. . . do what they can to enlighten their friends and neighbors concerning the threats facing our non-partisan selection system. Speak up to individuals and neighborhood or civic groups; write letters to your local newspaper; contact your legislators to register your opposition to the insertion of politics into the selection of non-partisan judges; and encourage others to do the same. Working together, we can shine the light of truth on these types of measure and retain the good system that has proven beneficial to the justice system in Missouri over many years. . . .

I won’t presume to think that my words turned the tide, but the efforts of many people made a real difference when, on April 17, the Missouri House of Representatives voted 83-69 to reject HJR 49. This measure would have authorized the governor to appoint a total of five non-lawyers to the Appellate Judicial Commission, without regard to the appellate districts in which they reside. Had it passed, HJR 49 would have led to domination of the commission by gubernatorial appointees, giving the governor inappropriate control over the selection of judges. In addition, it would have eliminated the geographical diversity inherent in the current method.

Any attempt to inject partisan political considerations into a system that was created specifically to avoid those concerns is both counter-productive and insidious. In addition, giving one branch of government – whether it is the executive or the legislative – undue and inappropriate influence over the selection of judges within the third branch is a clear erosion of the system of checks and balances that has served our nation, and our state, so well. To be sure, the House’s rejection of this measure is a victory for the forces of common sense and fairness.

There are any number of groups and individuals – some known, some unknown – who deserve our gratitude for their efforts on behalf of fairness, integrity and the maintenance of an impartial judiciary. While this is by no means a comprehensive list, they include:

• Those courageous legislators, both Democrats and Republicans, who voted to reject HJR 49. Refusing to bow to enormous political pressure, they held firm to their belief in a judicial system that is guided by law, not partisan politics or the desires of special interests.

• The members of our Supreme Court – especially Chief Justice Laura Denvir Stith – for their vigilance and enormous patience in dealing with a firestorm of intense scrutiny. The Court has displayed an enormous amount of wisdom in making sure that it has responded to legitimate inquiries regarding the judiciary while avoiding the temptation to respond in kind to provocative attacks on the courts.

• The judges of other courts across the state – both non-partisan and partisan-elected – who have had their integrity brought into question through repeated use of the vague, umbrella term of “judicial activism.” I am eternally grateful to these judges for responding to my public and private pleas for help. It is noticed and appreciated.

• The bipartisan coalition of local bar organizations, civic groups, business entities and other groups that stepped forward to publicly declare their support for the Non-Partisan Court Plan. Their collective resolve was magnificent and essential in defeating this legislation.

• Those members of The Missouri Bar who spoke up in defense of the judiciary – whether that involved spreading the word to others, speaking before civic groups, or taking the opportunity to contact their legislators regarding HJR 49 and other misguided attempts to politicize the selection process for judges. Their voices played a major role in helping many legislators more clearly understand the value of a judicial system that is not beholden to political interests.

• Citizens from all corners of Missouri, who, motivated only by a desire to ensure that justice remains not for sale, clearly expressed their opposition to HJR 49 through letters, telephone calls and e-mails to their lawmakers.

Finally, I think it is important to thank those people, legislators and others, who were proponents of HJR 49. As I said in my previous column, I am confident that they are intelligent, decent, well-meaning individuals who took a position that they felt was in the best interests of their constituents and the citizens of this state. However, one of the unintended results of their advocacy was to coalesce people and groups from all walks of life in opposition to those efforts. Quite unintentionally, their attempts to politicize the Non-Partisan Court Plan served to remind us that sometimes we need to fight to preserve the things we most value.

I am reminded of the words of United States Supreme Court Justice Louis Brandeis, who, in the 1928 case of Olmstead v. U.S., noted, “Experience teaches us to be most on our guard to protect liberty when the government’s purposes are beneficent.” I am grateful to everyone, known and unknown, who continues to stand on guard in protecting and preserving Missouri’s system of non-partisan judicial selection. I am equally grateful for the privilege of serving as President of The Missouri Bar during this monumental fight to maintain a fair and impartial judiciary.