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In favor of the Nonpartisan Court Plan and mandatory retirement

Earlier this year, attorney Leigh Joy Carson expressed to the readers of this paper her opinion that politics remain in the selection of judges in our Missouri Nonpartisan Court Plan. The evidence she provided: her fellow attorneys who litigate.

I have never been involved in the selection of judges, thus I cannot speak with any certainty as to the “politics,” if any, purportedly besieging our state’s selection process.

However, in my young legal career, I’ve had the opportunity and privilege to serve as a clerk for two different judges of the Missouri Court of Appeals, Eastern District. Each judge, initially elected to the trial bench on partisan ballots, hailed from different political parties. In my experience, my bosses’ political ideologies or beliefs never dictated or directed the results they reached. The facts and the law did that.

That to me — the removal of “politics” from the disposition of a case — seems to be the most important facet, and the hallmark, of our Nonpartisan Court Plan. (Well, also the removal of political money, but I leave that for another day.) On that principle alone, I will continue to fawn and praise the plan, and I will enthusiastically congratulate the wisdom of those legal giants that came before me who had the ingenuity to devise such a plan.

In the same piece, Ms. Carson conveyed her vexation with this state’s constitutional requirement that all judges retire upon turning 70. It appears Ms. Carson is troubled that such an arbitrary requirement produces a vacuum for judicial talent and unnecessarily compels even good judges from further serving our state.

Although the age of 70 may be arbitrary, the effect of the requirement is actually very systematic and methodical.

All Missouri judges, regardless of competency, political party or ideology, gender, or county of residence must make way for new, younger judges.

Contrast that with Ms. Carson’s proposal for a “test” to determine one’s ability to continue to serve after 70. Such a proposal would spawn much greater variability and subjectivity, both in the design and results of the test.

Moreover, it begs the question as to why this state would not subject all judges, regardless of age, whether elected or appointed, to the same test.

For me, the age of a judge — young or old — does not cause me to alter the way I practice law.

Speaking as a millennial, younger generations of Missouri lawyers are endowed with the same patriotic respect and solemnity for the rule of law as those that came before us — after all, we learned and are learning from those that precede us.

Younger lawyers lack neither the aptitude nor the indefatigable determination to be judicial stars themselves one day. In fact, I have no doubt future generations will speak in the same glowing terms of my fellow cohorts that will soon don the black robes and rap the gavel as Ms. Carson speaks of those judges that came before her.

Mandatory judicial retirement may occasion the loss of strong judges, still able and willing to serve. But, fear not: the plan ensures their replacements will still possess the legal acumen and character that we demand of our judges. They will just be younger.

The apprehension of younger judges is no reason to amend our state’s constitution.

david-franklin-headshotDavid Franklin is a St. Louis area attorney. He can be reached at davidfranklin64@gmail.com.




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