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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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