This election season, you're ready to show those fat cat incumbent politicians that you're the boss. So you walk into the voting booth on November 2 and get to the question about whether to retain 15 Jackson County Circuit Court judges. You don't recognize any of their names, so you just start going down the line, checking "No." You're out of a job, you figure. Why shouldn't they be?
This is the scenario that judges on the ballot for retention, like 16th Circuit Court Judge Jay Daugherty, fear most.
"There are academic studies out there that show how judicial elections go, and they really go like other political elections," Daugherty says. "When the electorate has a 'let's throw the bastards out' kind of mentality, the judges are going to face that same wrath, even though we are far removed from economic issues or most political issues, frankly."
The Missouri Nonpartisan Court Plan was created in 1940 as a compromise between having the public vote for judges -- meaning that judges would have to raise money and campaign, with all the blurry ethics that entails -- versus judgeships that are lifetime appointments from the governor.
Under the Missouri plan, a panel of two lawyers, two laypeople and the head of the state appellate court nominate three candidates to be judges, then send those three choices to the governor, who picks one. Every six years, Jackson County voters decide whether or not to retain the judges in their posts.
The Missouri Bar Association provides guidance for voters in the judicial elections. They mail a survey to everyone who serves on a Jackson County jury, asking them to qualify their opinion of the judge in their trial experience. They also survey all 6,000 lawyers. They distill the answers to numerical averages, with a 5 being a perfect score and a 2.5 being low enough to rate another round of scrutiny. This year, they recommended that all 62 judges on the ballot be retained except one, Associate Circuit Judge Judy Draper, of St. Louis County. It's only the third time that the state bar association recommended that a judge be given the boot since 1940.
Critics of the Missouri Nonpartisan Court Plan complain about how infrequently judges are ousted. But Daugherty, rather obviously, disagrees. "It's designed to discourage judges being voted out of office because we want judges to feel independent," he says. Otherwise, a judge might think twice about issuing a ruling that is based in the law but that might prove unpopular with the electorate, for fear that the issue will come back to haunt him or her via negative campaign ads.