AJS Analysis of Missouri HCS HJR 49

Section 25(a)

RE: submission of up to two lists of five names each to the governor for each vacancy.

Under AJS’ model judicial selection plan, the commission should have the flexibility to submit between two and five names to the governor. The number of names submitted to the governor should be sufficiently low that the commission nominates only the best qualified candidates. A single list of five names is the maximum because it gives, and limits the governor to, the best qualified candidates. At the same time, for vacancies in less populated areas, the commission may have difficulty finding five highly qualified candidates and should therefore be allowed the flexibility to submit fewer names.

RE: failure of the governor to make an appointment within the allotted time and appointing responsibility falling to the lieutenant governor and then to the nominating commission.

AJS’ model plans calls for a judicial officer, either the chief justice or the presiding judge for that district or circuit, to make the appointment if the appointing authority fails to do so within the allotted time. This seems preferable, for political reasons, to allowing another executive branch officer to make the appointment.

Section 25(d)

RE: selection and confirmation of nominating commission members.

According to AJS’ model plan, judicial nominating commissions should include both lawyers, who can advise on the needs of the court and the professional qualifications of applicants, and non-lawyers, whose ties to the community and non-legal perspective lend credibility and legitimacy in the eyes of the public. This proposal is consistent with this principle.

According to AJS’ model plan, commission members should be selected by multiple actors or entities as this proposal requires. Having multiple selectors protects against the potential for partisan dominance and efforts to make commission members agents of the selecting authority. AJS’ model plan does not call for senate confirmation of appointees to the nominating commission.

AJS’ model plan calls for consideration of the racial, ethnic, gender, and other diversity of the relevant jurisdiction in the selection of nominating commission members, which is lacking in this proposal.

RE: openness of and public access to commission activities.

According to AJS’ model judicial selection plan, the names of applicants should remain confidential so that qualified candidates are not discouraged from applying because of personal privacy concerns. The AJS model plan calls for publication of nominees’ names.

According to AJS’ model plan, the public should have sufficient knowledge of the nominating process to maintain confidence in the process. To that end, organizational meetings of the nominating commission should be open to the public, with advance notice and an agenda provided. This proposal provides that openness. Final deliberations regarding the selection of nominees should be confidential to encourage free and open discussion of candidates’ qualifications. The language in the proposal is ambiguous on this point and may not ensure confidentiality.