Monday, July 23, 2007

UMKC Law Professor Engaging in Misleading Right-Wing Attack

With that headline, you'd expect to be reading about Kris "K" Kobach, but, this time, it's Bill Eckhardt. Bill's a gentlemanly, intelligent, rational person. That's why I was so surprised to see this article in the Southeast Missourian by Bill and a corporate lawyer/Republican donor from St. Louis. The article is illogical, misleading and a sneaky attempt by the right wing to give political hacks like Jeff Roe a major role in making our court system just as dysfunctional as our General Assembly.

First, a little background. Missouri has a system for selecting judges that is a model for the United States. It applies to urban trial judges, all appellate judges, and the Missouri Supreme Court. Rather than having elections, those judges are selected by the Governor from a panel of three chosen by a commission composed of lawyers and lay people, based on merit. After the judge is appointed, he or she stands for retention by the voters in the following general election, and every dozen years thereafter. Simply stated, the system works well. Missouri has one of the best state benches in the nation.

Bill Eckhardt wants Missouri to throw out this elegant blend of democracy and merit in favor of PACs, smear campaigns, and attack dogs like Jeff Roe. He would rather have a Supreme Court that functions like the General Assembly cesspool than a courtroom.

His article in favor of this foolish position is a curious blend of deceptive logic and outright factual mistakes. It would be disappointing to see such debased work from a first-year law student - it is shocking to see it from someone who is supposed to be teaching those students.

Perhaps the silliest and most glaring instance of sloppiness is Eckhardt's flawed assertion that:
The commission has seven unelected members: three lawyers chosen by the Missouri Bar Association, three nonlawyers chosen by a governor (past or present, depending on the expiration of a commission member's term) and the chief justice of the Missouri Supreme Court (also usually a member of the Missouri Bar Association).
First off, there is no "Missouri Bar Association". The Missouri Bar is not a voluntary association - it is the quasi-governmental organization composed of ALL practicing attorneys in the state of Missouri. It is not some politically-biased interest group, and Professor Eckhardt ought to have enough familiarity with the governance of Missouri lawyers to know better.

The foolishness of this decidedly non-professorial mistake is illustrated by the claim that the Chief Justice of the Missouri Supreme Court is "usually" a member of the "Association". Usually? Bill, Bill, Bill - you should be ashamed of yourself.

The flawed facts are nothing, though, compared to the flawed logic. Eckhardt claims that the fact that only two judges have lost retention elections demonstrates that the system isn't working. Instead, it is clear proof that the system is working brilliantly. If we were getting bad judges through the Missouri Plan, voter discontent would show itself, wouldn't it?

Any sharp-eyed law student would catch the fallacy in Eckhardt's next weak argument:
The people of Missouri no longer support the plan. A recent survey reveals that most (two-thirds) of Missourians do not know how the plan works. A stunning 87 percent are unaware that the Missouri Bar Association helps pick the appellate judicial commission. A majority disagree with the retention election model and believe voters should have the greatest input on who serves on the Supreme Court.
Anybody want to bet who paid for it, or who carefully phrased the questions to support the attack? Eckhardt would have us toss out our Missouri Plan based on an obscure poll of voters who do not know how the system works. Notice that Eckhardt is silent about what those who do know about the Missouri Plan think. Those who do know about it support it with a rare degree of agreement - whether Republican or Democrat, lawyers support the plan.

As stated above, it is disappointing to see any lawyers attack one of Missouri's greatest contributions to jurisprudence. If an attack were to be made, though, it's not surprising that it would come from a St. Louis corporate attorney (who never goes to court) and from a law professor on his ivory tower. It is surprising, though, how sloppy and illogical their well-paid attack turned out.

We are blessed to have a system that works. Do you really want to trade it in for a bunch of politician/judges winning your votes with robo-calls and smear ads? Do you really think that would be better?



Blogger sophia said...

Oh... this is fun. No post, just a headline: UMKC Law Professor Engaging in Misleading Attack on

May I have Kris Kobach is still a jackass for 200, please Alex?

7/23/2007 6:56 PM  
Blogger Dan said...

Hah - sorry, Sophia, I stopped for dinner in the middle of drafting this post.

You lose, but that was a high-quality guess!!

7/23/2007 8:59 PM  
Anonymous mainstream said...

Another good post, Dan.

Don't get me started on the 87% polling number, that's patently ridiculous.

OF COURSE 87% of people don't know how the system works - it's because like most local government issues, people simply don't care, therefore they don't know.

We might as well poll people on their knowledge of the 167 chemical ingredients in twinkies. That's just as relevant.

This guy is twisting the facts fast and furiously. Glad you called this joker out on it.

And this guy is teaching kids?

7/23/2007 9:51 PM  
Anonymous Anonymous said...

the MBA doesn't have an advocate for lawyers if someone files a complaint with the bar association.

7/23/2007 11:00 PM  
Blogger les said...

Nice catch, Dan. The Missouri System has been adopted in a number of states, and has shown you can get a non-partisan bench focussed on quality, not patronage. It's not surprising that the system is under attack, in a time when for too many party loyalty trumps all, and "activist judge" simply means one who disagrees with you.

7/24/2007 9:37 AM  
Anonymous Moe, Larry and Curly said...

"one of the best state benches in the nation..."


If thats true, then the other states must be hell.

As for the "non partisan" plan, you aren't seriously trying to tell me politics is not involved in the selection process are you?

What a crock! There are elected judges in other circuits who do just fine, and treat people with more respect.

By the way, whatever happened to the dozen or more lawyers who were loaning money to that judge.

Got anything on that old boy?

7/27/2007 4:29 AM  
Blogger Dan said...

Stooges -

You're setting up silly straw men. Did I claim that there is no politics involved in the process? Of course not - I described the current system as "elegant blend of democracy and merit". Please read more carefully.

Similarly, I never denied that good judges could come out of an election. Please read more carefully.

Finally, the judge with the loans did not go through the Missouri Plan process - she was a municipal judge, selected by the City Council - a much more political process than the Missouri Plan. And look what happened. Thank you for pointing that out.

7/27/2007 9:07 AM  

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