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‘Weaponized’: Chief Justice Draper excoriates influence of bias on Nonpartisan Court Plan

Jessica Shumaker//September 20, 2019

‘Weaponized’: Chief Justice Draper excoriates influence of bias on Nonpartisan Court Plan

Jessica Shumaker//September 20, 2019

Missouri Supreme Court Chief Justice George W. Draper III, speaking to The Missouri Bar at their annual meeting on Sept. 19, 2019, in Branson, criticized the "weaponization" of performance evaluations against minority judges. Photo by Jessica Shumaker
Missouri Supreme Court Chief Justice George W. Draper III, speaking to The Missouri Bar at their annual meeting on Sept. 19, 2019, in Branson, criticized the “weaponization” of performance evaluations against minority judges. Photo by Jessica Shumaker

In his first speech before members of The Missouri Bar, Missouri Supreme Court Chief Justice George W. Draper III excoriated what he called the “unprecedented weaponization” of judicial performance evaluations against minority judges.

The issue is especially personal for Draper, whose wife, Judy Draper, was not retained as an associate circuit judge for St. Louis County in the 2018 election after receiving low ratings from the Judicial Performance Review Committee.

Judy Draper, who received a standing ovation when her husband introduced her on Sept. 19, is one of only four judges since the creation of the Nonpartisan Court Plan in 1940 to not be retained.

“You may think this is just about my family, and to some extent, it is,” Draper said in his speech at The Missouri Bar Annual Meeting in Branson. “But it goes so much further than the result of any one judge’s retention election.”

The chief justice, a former prosecutor in the St. Louis Circuit Attorney’s Office, set up his criticism of the court plan as part of a hypothetical styled as a prosecutor’s arguments. The defendants, he said, were lawyers in a specific geographic location, St. Louis County; members of the Judicial Performance Review Committee; and the news media.

RELATED: Photos from 2019 Missouri Bar annual meeting

He said he’d establish the culpability of lawyers by “revealing the strong influence of implicit bias, further aggravated by the unprecedented weaponization of a plan altruistic in design, but abused in implementation.”

As part of the hypothetical, he said lawyers used the review process to attack not only African American female judges but also two white male judges by giving them exceptionally low ratings.

Turning to the committee, he said the members of the group receive no training, failed to account for implicit bias in attorneys’ reviews of judges and failed to establish a fair mechanism for scoring judges.

The Judicial Performance Review Committee, created by the Missouri Supreme Court and administered by The Missouri Bar, is made up of lawyers, non-lawyers and retired judges statewide. It reviews judges when they stand for retention election.

The evaluation committee doesn’t explicitly recommend whether voters should retain judges or not. Instead, committee members vote on whether each judge meets judicial standards. Although identifying information about the judges is removed during the committee process, the evaluations are based in part on a survey of lawyers who appeared before the judges, and who obviously know the name, race, gender and location of the judges they’re evaluating.

Ray Williams, past president of The Missouri Bar, left, looks on as Supreme Court Chief Justice George W. Draper III reads a resolution marking the bar’s 75th anniversary. In his first speech to the bar on Sept. 19, Draper criticized the “weaponization” of performance evaluations against minority judges. Photo by Jessica Shumaker.
Ray Williams, past president of The Missouri Bar, left, looks on as Supreme Court Chief Justice George W. Draper III reads a resolution marking the bar’s 75th anniversary.
In his first speech to the bar on Sept. 19, Draper criticized the “weaponization” of performance evaluations against minority judges. Photo by Jessica Shumaker.

Draper also said the news media, for its part, showed an unwillingness to accept its responsibility in reporting information about judicial reviews accurately and fairly to the public.

“The real crime here is the failure of each defendant to examine the reliability of the original information it received and has allowed some in a single jurisdiction to weaponize our Missouri Plan, encouraging others to think they, too, can or must attack sitting judges,” he said.

“As I’m sure you’ve surmised, our hypothetical is not so hypothetical,” he said.

Draper said he takes responsibility for not being more vocal about earlier concerns, and he said there is a reason why the Missouri Supreme Court has required training designed to eliminate implicit bias. Still, he supports the Nonpartisan Court Plan, recognizing the good it has accomplished, he said.

Draper encouraged the bar to do better, however, and to choose examples set by other states such as Illinois, where judicial performance evaluations are designed to reduce bias in evaluating judges.

“We are leaders, we are innovators, but we also must be collaborators,” he said. “We must act as a fully integrated bar in every sense of the phrase.”

RELATED: John Grimm elected next VP of The Missouri Bar

Draper also said the bar needs to “pull our feet from the mud.”

“Those recalcitrant practitioners mired in their unconscious bias who perpetuate the myths and lost causes of discrimination must, if unwilling to be educated, be exposed and marginalized,” he said. “Your responsibility, our responsibility is not hypothetical.”

Draper said that “weaponizing” the court plan against any one class of judges “hampers its effectiveness and encourages exactly what it was designed to check” — politicization and allowing outside forces to exert influence over the composition and independence of the judiciary.

“Issue a true bill, and commit to doing the hard work to make our profession, our court plan, and our judiciary a model of fairness for all,” he said.

Draper’s speech marked his first major address since he became chief justice on July 1. Although chief justices frequently praise the Nonpartisan Court Plan, Draper’s speech is the first in nearly a decade to focus on how the plan works. In 2010, then-Chief Justice William Ray Price Jr. used his speech at the annual meeting to announce major changes to the process for selecting nonpartisan judges, including that interviews with judicial candidates would be open to the public.

While some audience members appeared visibly irritated during Draper’s speech, he received a standing ovation at its conclusion.

Following the speech, bar President Tom Bender said in a statement that Draper “spoke with passion and from a unique perspective about Missouri’s Non-Partisan Court Plan and the court-established Judicial Performance Review process.”

“I believe the court and committee will constantly monitor and make improvements to the process,” he said.

Dale C. Doerhoff, chair of the Judicial Performance Review Committee, also said the committee “works to continually improve the process to help inform Missouri voters about their nonpartisan judges up for retention.”

“We are currently studying and considering recommendations to implement for 2020 reviews and look forward to announcing those when finalized,” he said in a statement.

Photos from 2019 Missouri Bar annual meeting

2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Suzanne Barth, of Jefferson City, cuddles Clark, a puppy named for attorney Marcia Clark, at the 2019 Missouri Bar annual meeting in Branson. She initially said she was 75 percent interested in adopting the puppy. “I’m probably up to 80 percent by now,” she added. Photo by Jessica Shumaker.

Suzanne Barth
George W. Draper III
George W. Draper III

Missouri Supreme Court George W. Draper III speaks to the Missouri Bar annual meeting on Thursday, Sept. 19, 2019, in Branson. Photo by Jessica Shumaker

George W. Draper III
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Outgoing Missouri Bar President Ray Williams, left, listens at the 2019 Missouri Bar annual meeting in Branson as incoming president Tom Bender, right, recognizes his service to the bar association during his term while also working as a solo practitioner in West Plains. Photo by Jessica Shumaker.

Ray Williams, Tom Bender
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Retired Judge James Dowd, left, speaks with John Grimm, the newly elected vice president of The Missouri Bar, before the opening luncheon at the 2019 Missouri Bar annual meeting in Branson. Photo by Jessica Shumaker

James Dowd and John Grimm
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Ray Williams, past president of the Missouri Bar, left, watches as Missouri Supreme Court George W. Draper III speaks to the Missouri Bar annual meeting on Thursday, Sept. 19, 2019, in Branson. Photo by Jessica Shumaker

Ray Williams and George W. Draper III
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Lorne Baker, associate circuit judge in St. Louis County, holds Cochran, a puppy named for Johnnie Cochran, at the 2019 Missouri Bar annual meeting in Branson. The bar arranged for Shepherd of the Hills Humane Society to bring the adoptable puppies to the event to help lawyers reduce stress. Photo by Jessica Shumaker.

Lorne Baker
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Belinda Kaderly, left, of Lamar, chats with Angela Vorhees, a family court commissioner for the 29th Judicial Circuit in Carthage, at the 2019 Missouri Bar annual meeting in Branson. Photo by Jessica Shumaker

Belinda Kaderly and Angela Vorhees
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Jackson County Circuit Judge Jalilah Otto speaks on a CLE panel at the 2019 Missouri Bar annual meeting in Branson about the intersection of lawyers’ First Amendment rights and social media. Photo by Jessica Shumaker

Jalilah Otto
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Jeffrey B. Jensen, U.S. Attorney for the Eastern District of Missouri, speaks on a panel about federal health care enforcement priorities at the 2019 Missouri Bar annual meeting in Branson. Photo by Jessica Shumaker

Jeffrey B. Jensen
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Retired Judge Deborah Daniels moderates a panel discussion at the 2019 Missouri Bar annual meeting in Branson on attorneys’ First Amendment rights and social media. Sara Rittman of the Missouri Attorney General’s Office is shown at right. Photo by Jessica Shumaker

Deborah Daniels
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Matthew Schelp, left, an attorney with Husch Blackwell in St. Louis, speaks on a panel at the 2019 Missouri Bar annual meeting in Branson with Jeffrey B. Jensen, center, U.S. Attorney for the Eastern District of Missouri, and Timothy A. Garrison, U.S. Attorney for the Western District of Missouri. The CLE focused on federal health care enforcement priorities.  Photo by Jessica Shumaker

2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Springfield attorney Dwight Rahmeyer, from left, talks with Mike Garrett of Monett, and  Judge Joseph Phillips of Stockton following a plenary session on medical marijuana at the 2019 Missouri Bar annual meeting in Branson. Photo by Jessica Shumaker

2019 Missouri Bar annual meeting

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