The Federalist Society has released a study investigating the correlation between states with a merit selection judiciary (the so-called “Missouri plan” model) and school finance litigation.
The “Missouri Plan” amended the state Constitution such that judicial nominations are selected — at least in part — through an independent nominating counsel (generally comprising state American Bar Association-appointed lawyers) instead of by popular election. Today, 26 states have adopted some form of the “Missouri Plan” for their judicial appointments.
The legal benefits of the “Missouri Plan” are debatable. Many studies have examined the impact of such plans on business-friendly legislation (the argument being that judicial nominations appointed by ABA members will be less friendly to issues that might limit the market for lawyers). In fact, in an upcoming policy report, the Show-Me Institute will examine the Missouri Plan in detail. (Stay tuned for the excitement!)
The Federalist Society’s research highlights at least one negative aspect, however. To date, 45 states have addressed education adequacy litigation. According to data gathered by Columbia University, about two-thirds of adequacy decisions in Missouri Plan states strike down the legislatures’ funding statutes. This means that courts have effectively commandeered the power of the purse — something clearly within the proper domain of the legislatures.
In addition, in a joint study by the Institute for Justice and the American Legislative Exchange Council, analysts found that school voucher systems are constitutional in 77 percent of states with popularly elected judiciaries, versus 50 percent in Missouri Plan states.
So I guess this was a long way of me saying that there is evidence that courts are friendlier to the school choice movement in states where judges are elected by the people themselves.
