Senators Claire McCaskill and Kit Bond have an opportunity to endorse judicial restraint by voting NO when asked to confirm Elena Kagan’s nomination to the Supreme Court. Will they take this opportunity, or will they allow another judicial activist to be appointed to our highest court?

Elena Kagan has a record of supporting judicial activism that reaches back to her time as a law clerk for renowned judicial activist Justice Thurgood Marshall. Rather than interpreting the constitution as a concrete document, she has expressed her opinion that it is a “living document,” opening the door for activist legal interpretations.

Furthermore, it has been revealed she looks to a controversial former Israeli Supreme Court justice, Judge Aharon Barak, as a “judicial hero.” Why is this a concern? Judge Barak helped to transform Israel’s Supreme Court by drastically expanding its powers and embracing the doctrine of “comparative law” – letting international legal decisions influence domestic legal interpretation. Understandably, her admiration for such an undeniably activist and international-minded jurist has many worried about her possible impact on the U.S. Supreme Court.

Better Courts for Missouri urges Senators McCaskill and Bond to vote NO on confirming Elena Kagan’s nomination to the U.S. Supreme Court.

The Missouri Law Review devoted their entire summer volume to a symposium on the Missouri Plan. One piece by Stephen J. Ware, entitled The Missouri Plan in National Perspective, was particularly striking. Ranking the judicial selection systems of the fifty states on a continuum from most populist to most elitist, he found the Missouri Plan was the most elitist and most undemocratic way to select judges.

Ware finds that allowing an appointed commission to have so much power in the judicial selection process, particularly a commission in which the lawyer members are chosen by the Bar rather than by elected officials, violates some of the most basic principles of democracy by giving a small segment of the population – in this case, members of the bar – more influence than the average person. Furthermore, by not requiring Senate confirmation and not offering elected officials any choice other than the panel presented by the commission, Ware finds that “the Missouri Plan gives the commission more power to force one of its favorites on the democratically elected officials” (Page 760). Should a commission in which 3 of 7 members are elected directly by the Bar, with no input from elected officials or the average citizen, have such broad powers in a democracy? These commissioners are accountable to nobody except for those in the Bar’s narrow constituency. How can they be expected to represent all of the people of Missouri when they are only held accountable by a select few?

Quite simply, they can’t. Undemocratic flaws make our current version of the Missouri Plan unresponsive to the needs of the people and prone to corruption. Fortunately, simple reforms to increase openness and accountability can make our system better and give us a stronger, more democratic judiciary.

Better Courts for Missouri encourages you to read Ware’s piece and ask yourself: Is our version of the Missouri Plan, one of the least citizen-oriented in the nation, really serving us as well as it should? The answer you find will undoubtedly be no.

The latest victory for greedy trial lawyers has come just next door to Missouri in Illinois, where the state Supreme Court has ruled that a cap on non-economic damages that became law in 2005 is unconstitutional. They ruled that the cap was an infringement of the separation of powers, that it amounted to a “legislative remittitur” that interfered with the judiciary’s traditional power to determine the damages to be awarded in a case, and that such an infringement would invalidate the law in its entirety.

This is a bad decision that will cause doctors to leave Illinois and will cause patients to pay higher prices for the care they receive because protection from junk lawsuits has been eliminated. Junk lawsuits have been estimated to increase health care costs by 10% and are a major motivation for physicians who choose to retire or move their practice to avoid harsh legal climates.

For more information, please read the verdict, available here.