The Missouri Plan

     Jack Close is on a mission. As long as he serves in the Nevada Assembly, Mr. Close vows to fight to change the way state judges acquire their jobs.
      Today, Nevadans elect their judges. From justices of the peace to Supreme Court jurists, those who sit on the bench in this state, with a few exceptions, earned that privilege by gaining voter approval. Mr. Close and many others, however, believe the process demeans judges by forcing them into the nether world of politics. They favor altering the state constitution to impose the Missouri Plan, a system of appointing judges currently used by more than 30 states.
      The Missouri Plan gains momentum every few years after a nasty, high-profile judicial political campaign. This time, supporters of the idea point to the 1996 Nevada Supreme Court contest between incumbent Cliff Young and Clark County Family Court Judge Steve Jones. While hardly a blood bath by the standards of, say, a congressional race, the contest featured the two judges trading personal accusations as the election neared, a practice many critics of the current system find unseemly.
      In addition to objecting to the dark side of judicial election campaigns, backers of the Missouri Plan argue an appointment process would be less political and would solve problems created when judges must seek cash contributions to fund their drives for office. "Judges are not supposed to be traditional politicians," said state Sen. Mark James, whose bill to appoint judges died in the 1995 Legislature. "They are not supposed to do things based on the popular will. They are supposed to decide cases on sound legal principles."
      Mr. James is correct. But how would a Missouri Plan achieve that ideal? Running for election hardly precludes a competent judge from basing his rulings on the law instead of popular opinion or the desire of a campaign contributor.
      Supporters of the Missouri Plan make some solid points. The debate over appointing or electing judges has raged since the founding of the republic, and reasonable men and women can disagree. While judges are appointed for life under the federal system, no state does the same -- in large part because state judges have traditionally dealt with matters of more immediate impact on a citizen's liberty and property, making the need for a direct check on their actions more compelling. Missouri Plan supporters would erode that check: Strip away the lofty concerns about the influence of politics and money on the judiciary, and what remains with the Missouri Plan is a system that strengthens the political elite at the expense of ordinary citizens.
      Political concerns don't evaporate in the appointment process, they just become more concentrated. Under most Missouri Plan scenarios, and under the rules by which the state currently fills unexpected judicial vacancies, a selection committee picks three finalists for a particular judgeship and the governor winnows that to one. Voters would then have occasional opportunities to vote whether to "retain" a particular judge -- a balloting stacked in favor of the sitting judge. Who could deny that under an appointive system the selection panel make-up would become a political issue? Does anyone believe the governor's final selection would be made free of politics?
      As for judges being forced to drum up campaign contributions in order to keep their seats under the elective system, the Missouri Plan would only redirect the money. Those seeking to influence the process could gain an ear by donating to the governor or to lawmakers charged with formulating the selection panel. A judge under fire might still raise piles of cash to convince voters to "retain" him. Besides, the ultimate curb on a judge's tendency to alter rulings based on contributions remains both a free press and the threat of an opponent who makes such unethical actions a campaign issue.
      Several states have embraced the Missouri Plan. But Nevadans on more than one occasion have voted to maintain their elective oversight of the state judiciary. They have done so because they believe that a system which depends on the wisdom of the people, a system that places the ultimate power in the hands of the citizens, remains preferable, even with its flaws, to consolidating control among a select few.
      Mr. Close can keep on pushing the Missouri Plan. But we'd urge the Legislature to reject his efforts.