The Missouri Senate initially passed a constitutional amendment altering the state’s nonpartisan court plan, a breakthrough for proponents of changing the system that selects some of the state’s most powerful judges.

After a lengthy debate, state Sen. Jim Lembke’s amendment was perfected in the Senate Thursday, but it still needs another vote before going to the House. If the legislature passes the amendment, voter approval would still be required.

Lembke’s amendment modifies the composition of the Appellate Judiciary Commission, which selects judges for the Missouri Supreme Court and the Missouri Court of Appeals.

Currently, the commission has three attorneys elected by the Missouri Bar and three laypeople appointed by the governor. It also includes the chief justice of the Missouri Supreme Court, giving attorneys a 4-3 majority on the commission. When a vacancy comes up, the commission submits three nominees for a governor to select.

Lembke’s amendment would replace the judge member of the commission with a layperson, giving gubernatorial appointees a 4-3 majority. It would also stagger the terms of the laypeople so that a governor can appoint all four members during his term. In addition, the amendment would increase the number of nominees a commission nominates from three people to four.

“The other benefit is that people can point to someone who’s been elected to say ‘you’re responsible for this individual serving on the bench,’” Lembke said in a telephone interview. “In our republic, that is one of the most sacred things – that we can point to someone who is elected to represent us and say ‘you have to take ownership.’”

Senate's mood changes regarding judiciary

While the Missouri House has in the past approved constitutional amendments changing the plan, such measures have always died in the Missouri Senate. The closest Lembke and others got was in 2009, when changes were filibustered and ultimately scrapped.

Lembke admitted, “I will say to a certain extent I was surprised. Because after working on this issue for the last seven years, I don’t think I ever thought that it would happen in the General Assembly.

“I was surprised, very surprised when we came back into session this year and was hearing from colleagues that they believed we needed to make some changes,” he added. “And it was (from) both those who support the current Missouri Plan and those that don't. They were hearing that a rumbling of those would prefer elections was louder than they had ever heard it before. So this momentum came not only from proponents of change.”

He added that antipathy over state legislative redistricting may have also played a role in moving his amendment amendment forward. 

"I can tell you this: That certainly was one of the components that I believed has raised interest in this issue,” said Lembke.

Better Courts for Missouri, an organization that's been pushing for changes to the plan for years, issued a statement Thursday praising the Senate for passing a "modest, common sense reform measure is a step forward for the Missouri Plan."

“If this bill passes both houses of the Missouri General Assembly, the people of Missouri will be able to vote on changes that will allow the average Missourian to exercise more accountability over the judicial selection process," said Better Courts for Missouri Rich Chrismer. "It is our hope that the Senate will send this bill to the House quickly so it can be put on the next ballot.”

Some organizations – such as the Missouri Bar – have strongly opposed changing the plan, arguing that the change politicize the process.  

Lynn Whaley Vogel, the president of the organization, said in a statement that the resolution “would hand future governors control of four out of seven commissioners within a single term in office, remove a Missouri Supreme Court judge from serving on the appellate judicial commission, and dilute the quality of the selection process by increasing the number of applicants nominated by the panel.”

By granting future governors full control over the commission that selects the candidates for appellate judge, Vogel said. “This would effectively eliminate Missouri’s merit-based judicial selection process.”

While state Sen. Jason Crowell, R-Cape Girardeau, put forward a failed amendment to prevent the governor from appointing all four gubernatorial members in a single term, he said during debate that he “had no problem putting the citizens over the lawyers.”

“I am so tired – and I am one – of listening to all these lawyers say, ‘We can’t have those people in charge,’” said Crowell, who is an attorney. “I mean, come on. … Just 'cause you went to law school, just let it go, guys. Let it go.”

In any case, Lembke said if the proposal makes it to the statewide ballot, he expects both sides to be well equipped and well organized.

“There definitely will be a substantial amount of investment on both sides of this issue as far as making their case with the voters of Missouri,” Lembke said. “Both sides will have the opportunity to make their case. In that regard, you havethe same type of battle if the legislature wouldn’t have been involved."

Lembke's amendment would not change the process for selecting judges in St. Louis or St. Louis County. Both areas select judges using the Missouri Plan, while more rural parts of the state -- besides Greene County -- elect judges.