The Missouri Plan Picks a Strong Panel for the Next Supreme Court Justice

Missouri has a model system of selecting judges. Known as the “Missouri Plan,” Supreme Court and other appellate judges in our state must go through a two-part process. First, a seven-member commission nominates a panel of three applicants. Second, the governor appoints from the three.

The Missouri Plan was created in 1940 through constitutional amendment. After decades of corruption and judges chosen by a single powerful political patron (and mobster) from Kansas City named Tom Pendergast, a group of citizens led by Rush Limbaugh, Sr. removed judicial selection from politics and corruption.

The Appellate Judicial Commission is composed of the Chief Justice of the Supreme Court, three governor-appointed citizen members from different regions of the state, and three attorneys chosen via election by the Missouri Bar.

On Wednesday, the commission sent Gov. Greitens a panel of three exceptionally qualified nominees:

Judge Lisa White Hardwick is a Harvard-trained lawyer who worked for Gov. Kit Bond, as a partner at some of the state’s best business law firms, and as a Circuit Court judge in Kansas City. She has served on the Missouri Western District Court of Appeals for the past 16 years.

Judge Brent Powell graduated from the University of Missouri who has worked at one of Missouri’s best business law firms. He also worked as a local prosecutor and as a top lawyer in the United States Attorney’s office for the Western District of Missouri. In 2008, Gov. Matt Blunt appointed him Circuit Court Judge in Jackson County – where he has served the past eight years.

Finally, Ben Lipman is a partner at another great law firm and a law professor at Washington University School of Law in St. Louis. He has an outstanding reputation and decades of experience litigating First Amendment cases and a wide variety of other areas of law.

After not making the panel, many people asked how I was feeling and what I thought of the panel. To the first question, I feel great. Life is still very good – just as it was before this process began. It was an honor just to participate in the process. To a person, the Commissioners were great and thorough in their vetting.

To the second question, as it has for nearly 80 years, the Missouri Plan worked again to select a panel of three talented, deserving nominees. It is critically important to have judges who are free from the fickle winds of politics, and who will decide cases based on legal merits, not political ideology or million-dollar campaign donations.

As I navigated this process, each Commissioner asked me to compare the approach I take as a legislator with what I would do as a judge. Legislators are free to opine on what the law “ought” to be. Judges have the duty to interpret what the law “is” without regard to politics or the relative power of the parties to a case. As a legislator, I never have to vote for a bill that I believe is bad public policy. But judges are obliged to make those kinds of decisions all the time.

A case decided just this week is a perfect example. On Tuesday, the Supreme Court invalidated the effects of a bill the General Assembly passed two years ago that prohibited cities from setting a local minimum wage higher than the state minimum wage. The decision left many legislators and special interest groups gnashing their teeth with accusations of “liberal judicial activism.”

Those critics could not be more wrong. While the result of the Court’s decision aligned with liberal policy interests, the decision itself was as conservative as it gets. In fact, the question before the Court had nothing to do with the minimum wage.

Instead, Article III, section 23 of the Missouri Constitution prohibits the General Assembly from passing bills that contain more than one subject. The single subject rule exists to prevent legislative log-rolling where a provision that most legislators would oppose is attached to a completely unrelated but popular provision. It is a well-designed limit on legislative power.

The test for whether a bill violates the single subject rule is whether all of its provisions “fairly relate to, have a natural connection with, or are a means to accomplish the subject of the bill as expressed in its title.” In this case, the bill in question started as a matter “relating to community improvement districts” and ended with an amendment on minimum wage. No reasonable person can make a straight-faced argument that there’s a natural connection or any relationship at all between community improvement districts and local minimum wage ordinances. As a result, the Court struck the statute.

Critics of this opinion would prefer that the Missouri Supreme Court pretend that Article III, section 23 did not exist in our Constitution. Those critics are the judicial activists, not the Court. As I’ve written in other contexts, our Constitution is not a cheap buffet where we get to pick the parts we like and ignore the parts we don’t.

 

The answer to the single subject prohibition cases is not to curse the Court, but instead to abide by the Constitution.  Accordingly, my committee will be hearing a bill on Monday to do this the constitutional way: a single subject bill that prohibits local government from enacting minimum wage ordinances that conflict with state law.