George W. Draper III’s speech highlights long-standing court plan critique

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Missouri Supreme Court Chief Justice George W. Draper III’s fiery speech at The Missouri Bar Annual Meeting boosted the profile of long-running concerns about bias in the judicial review process.

In his Sept. 19 speech, Draper called out the “unprecedented weaponization” of judicial performance evaluations against minority judges — including his wife, Judy Draper, who was ousted as a judge in St. Louis County following a tepid evaluation in 2018. George Draper is just the second black judge to serve on the Supreme Court, and his wife is of African American and Korean decent.

Under the Nonpartisan Court Plan, appellate judges and trial judges in the St. Louis, Kansas City and Springfield metropolitan areas are appointed by the governor, and voters are asked periodically whether those judges should be retained in office.

Each election, a judicial performance review committee reviews the records of judges appearing on the ballot. The judges’ identifying information is removed during the committee’s review, but the evaluation is based in part on surveys of lawyers who appeared before the judges.

Earlier this year, the Mound City Bar Association, a St. Louis-based organization for African American attorneys, wrote to the Supreme Court arguing that “the attorneys who evaluate the judges are obviously not doing so blindly.”

“Accordingly, when they fill out their evaluations and that data later finds its way to the [judicial performance review], despite the data being stripped of race, gender, court or geographic location, the bias is still embedded in the evaluation results,” the organization wrote, adding that the information from the surveys needs to be examined before it is given to the committee.

Shira Truitt, the current president of Mound City, did not respond to requests for comment. Following Draper’s speech, officials from The Missouri Bar said the process was being reviewed for the 2020 election.

The Missouri Bar has coordinated judicial evaluations in some form since 1948. In its early decades, lawyers simply were asked “yes” or “no” as to whether a judge should be retained. Through the years, the process has come to include more detailed questions and a one-to-five point grading system for judges.

A Mound City-commissioned study in 2007 found “significant differences” in how attorneys rated and recommended judges for retention based on the race and gender of the judge they’d reviewed, with female African American judges receiving the lowest scores.

That study spurred the Missouri Supreme Court in 2008 to establish review committees to conduct judicial performance evaluations. For a time, judges in each circuit were evaluated by separate committees, but currently a single Missouri Judicial Performance Review Committee conducts evaluations throughout the state. The committee, which is funded and publicized by The Missouri Bar, doesn’t explicitly recommend whether voters should retain judges or not. Instead, committee members vote on whether the judge meets judicial standards.

In June, Mound City sent to the Supreme Court a supplemental study by the same author, Gary K. Burger, a retired industrial organizational professor at the University of Missouri-St. Louis. Between 2014 and 2018, he found, evaluations of female African American judges were significantly lower than in the 2007 study. According to the more recent data Burger analyzed, female African American judges received an average score of 3.54 on a five-point scale, while male African American judges received an average score of 4.05. Female Caucasian judges averaged 4.19, and male Caucasian judges averaged 4.08.

“The MCBA believes that despite a 13-year gap between the two studies and despite the overhaul of the judicial review program in Missouri, African American Judges, particularly female African American Judges, are rated significantly lower than all other judges,” the group’s letter said. “Based on the results, and despite the changes that resulted from the Missouri Judicial Performance Review (“JPR”) Committee and the Missouri Supreme Court itself, bias is still at play.”

Photos: 2019 Missouri Bar annual meeting