Another election is over and the clamor begins again to end popular election of trial judges. The most touted substitute is the Missouri Plan  where a local lawyer-citizen commission advertises for applicants, selects three, and submits them to the Governor for appointment of one. It sounds good; it sounds non-political; but I'm not so sure. 27 states follow the Missouri Plan of non-elected judges at the trial level and 23 do not.

I remember Shep, president of the 10,000 member tenants association. Whenever I went to court to defend against an eviction, Shep showed up early and waltzed into the judges' chambers to remind him that the tenants supported his election and he should decide against the landlord. I won a lot of eviction cases that way. Strike one against popular election of judges - - they are beholden to special interests.

I just read about an elected judge who sentenced a Defendant to 60 days in jail for contempt for saying Bull  during his trial. Strike two for popular election of judges- - egotistical eccentrics are more likely to be elected than appointed. Reporters, however, tend to forget the problems of appointed judges - - two federal judges have been removed from office in recent years for soliciting bribes. Strike one for the Missouri Plan. 

We must not forget the drawbacks of appointing judges and the fact that politics is not absent just because the candidates' names don't go on a ballot on election day; The Missouri Plan can be guilty of the worst kind of politics - - Bar politics. The public and press never know which lawyers and law firms lobbied for nominees named by the commission, and so it may never know an opposing lawyer in a lawsuit has an inside track with the judge because of his or her firm's support of the judge before the nominating committee or the governor. Strike two against the Missouri Plan. 

Under the elected trial judges' system, lawyers face many litigants who believe they have an inside track to the judge because they or their lawyer supported him or her, but at least they can ask the judge to recuse himself; since the electoral process of endorsements is public, a judge normally will agree. Under the Missouri Plan, however, a lawyer will rarely know when an opponent provided strong support for the judge. This does not mean that one system is superior to the other, it simply means that the better one is not as non-political as many current critics would have us believe.

We are actually dealing with one of those ultimate questions posed by Plato in The Republic.

How do we choose our guardians? In a society like the United States where virtually every social issue eventually becomes a legal one to be decided by a judge, the way we choose our judges is vital.

My personal preference is for the more democratic method of elected judges. Even with all its flaws, it limits the power of the aristocrats and busybodies who control Bar Associations. For my money, the 27 states with the Missouri Plan have adopted change simply for the appearance of improvement. Sometimes there is a benefit to this in a democratic society, but in this case it is not the elimination of politics.