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Politics still influences selection of judges

It seems to me that most of the public discussion about the judiciary in Missouri, particularly in media intended for consumption by the general public, focuses on fawning, self-congratulatory praise about how we have taken the politics out of the selection of judges in those circuits that do not elect judges.

I have not met a fellow attorney who litigates who believes that to be true.

Over 30 years ago when I clerked for Judge Carl Gaertner at the Court of Appeals, I remember that one day he laughed and said that he may have been the first judge in the state to be appointed to the circuit bench by a governor of one party and to the Court of Appeals by a governor of the other party. I don’t know if what Judge Gaertner said is true, but I believe it to be uncommon at best. A rather sad commentary on our vaunted non-partisan court plan.

I don’t know if the politics can be removed from the process of selecting judges, and I don’t have a suggestion to make it better, I am just bothered by the chest-beating and hollow pronouncements.

What I am peeved about and believe can be fixed, is the mandatory retirement at age 70 for judges.  Perhaps something like they do for driver’s licenses would be effective after age 70.

Certainly there are law firms with some sort of screening process in place that could be a guide.  I’m not suggesting that we adopt the federal system with no mandatory retirement age and no methodical way to assess judges’ capacity to continue to serve.

I was privileged to practice early in my career before Senior Judges Bob Hoester and Ninian Edwards, who were both clearly older than 70 and two of the best judges before whom I have practiced. Of course, there have also been too many judges who had clearly lost a step or two as they approached 70.

I limit my practice to family law, and we just lost a star to retirement – Judge Frawley – and in a little over a year, we will lose another giant, Judge Beach.  Those two gentlemen represent a great pool of knowledge, institutional and otherwise, and as the overwhelming majority of the residents of the state are affected by the family court, this affects us all.

Lest I be accused of tunnel vision, I first had this thought when Judge Hartenbach, who spent almost his entire career avoiding family court, “aged out” of the system.  Sometime prior to that, an exacerbated colleague stopped me in the hall and said “who in this building would you trust to make a decision about your life?” I replied “Jim Hartenbach” and he said “indeed” and kept walking.

Perhaps I want judges who are willing and able to do so to remain on the bench past age 70 because the judges of my youth are gone and their replacements are a decade younger than me, but I don’t think so. I can imagine answering my colleague’s question one day with “Judge Mondy Ghasedi.”

img_9270Leigh Joy Carson practices family law at the Carson Law Firm in Clayton.
She can be reached at leighjoy@thecarsonlawfirm.com.

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