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.
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.
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.”
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.