74 Judicature 128 (1990-1991)
In Celebration of the 50th Anniversary of Merit Selection

handle is hein.journals/judica74 and id is 130 raw text is: In celebration of the 50th
anniversary of merit selection
The former Chief Justice of Nebraska recounts the history of merit selection and its
adoption by Missouri in 1940, assesses its current status, and outlines the challenges for
the future.
by Norman Krivosha

t is now 50 years since the Show
Me State first adopted Merit Selec-
tion and gave to us a method for
selecting judges popularly known
as the Missouri Plan. Much has
changed during those 50 years. America
was on the brink of entering a second
world war; the term software referred
to a #2 pencil; and it was the air that was
clean and sex that was dirty. Yet, while
much has changed during those 50 years,
the general public misunderstanding
about the role of the judiciary and impor-
tance of its independence persists.
It is really hard to know where to
begin to tell this story. One might choose
to begin by remembering that, contrary
to current popular belief, initially fol-
lowing the American Revolution, judges
were almost universally appointed. It
was not until the advent of the Jackson-
ian era, and its emphasis on democratic
populist ideals being promoted and in-
stilled in the hearts and minds of Ameri-
cans, that there developed the notion
that everyone, including judges, should
be popularly elected and subject to the
will of the people. It may well be that it is
the rebirth of this populist notion which
has once again prompted so many of the
ill-advised to again champion for the
popular election of judges.
Perhaps one might appropriately sug-
gest that the story begins as a result of a
harsh speech given by a brash 35-year old
dean of the College of Law of the Uni-

versity of Nebraska before the American
Bar Association in 1906. It was at that
meeting that the then Nebraska Law
Dean, Roscoe Pound, delivered his now-
famous address entitled The Causes of
Popular Dissatisfaction with the Admin-
istration of Justice. Among the many
things that Pound said that evening,
much to the annoyance of the then pow-
ers that be, was that the most significant
causes of dissatisfaction with the admin-
istration of justice in America were an
archaic system of courts and procedure
that was behind the times. According to
Pound, one of the most serious problems
occurred because the people had put the
courts into politics and compelled judges
to become politicians, which in many
jurisdictions almost destroyed the tradi-
tional respect for the bench.
While that speech alone may not have
been sufficient to prompt Herbert Har-
ley to induce Charles Ruggles to under-
write and establish the American Judica-
ture Society in 1913, there is no doubt
that Pound's words and the' meanings
contained therein played a significant
role along with other factors then present.
Harley was not the only person con-
cerned about the American court system.
During the early years of the twentieth
century the courts became a focal point
of criticism. Led by Theodore Roosevelt,
progressive reformers launched a vigor-
ous attack on the judiciary. In a fiery
message to Congress on January 31,

1908, President Theodore Roosevelt cri-
ticized the courts for issuing injunctions
interfering with strikes. Two years later
in an address to a joint session of the
Colorado legislature, the then ex-presi-
dent faulted the judiciary for lagging
behind the time and for failing to recog-
nize new conditions.
Roosevelt's assault on the courts
reached a climax in February 1912, when
launching a bid to reclaim the White
House from his successor, William
Howard Taft. He spoke before a state
constitutional convention in Columbus,
Ohio. His speech was a rousing attack
on judges who used legal formalism to
thwart the will of the people. Roosevelt
believed that the will of people should
prevail even over the merits of the law.
According to Roosevelt, The decision
of a state court on a constitutional issue
should be subject to revision by the peo-
ple of the state.
In 1913, the American Bar Association
met in Montreal, and William Howard
Taft, then a former president and future
Chief Justice of the United States, ad-
dressed it on the subject of selection of
judges. He severely criticized both parti-
The article is adapted lion an address to the AJS
annual dinner on August 3, 1990. Among the
souies used were Hall, The Missouri Nonpartisan
Court Plan: A Quarter Century Review, 33 U. Mis-
sOURi A-r KANSAS Cn'Y L. REV. 163 (1965) and Win-
teis, The Merit Plan for Judicial Selection and
Tenure-Its Historical Development, 7 DUQ. L.
REV. 61 (1968).

128 Judicature Volume 74, Number 3  October-November, 1990

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