Will Missouri Supreme Court shift to the right after Gov. Parson’s upcoming appointments?

Republican Gov. Mike Parson has the power to potentially shift the Missouri Supreme Court more conservative this year after the planned retirements of two long-standing judges.

The retirements of Judges George W. Draper III, appointed by Democratic Gov. Jay Nixon in 2011, and Patricia Breckenridge, appointed by Republican Gov. Matt Blunt in 2007, mean that Parson will appoint two new judges to the state’s highest court — marking the second and third time the Republican has named someone to the court.

The appointments could represent a significant shift to the seven-member court, which will soon have only two judges who were appointed by a Democratic governor. A conservative shift to the court which decides some of the state’s most controversial cases would come as Republicans have supermajorities in both chambers of the General Assembly and hold every statewide office.

“There’s a potential that it does become more conservative,“ said state Rep. Maggie Nurrenbern, Kansas City Democrat. “In times like this, I think it’s absolutely imperative that we keep this nonpartisan court plan that the conservatives in the legislature are trying to take away so that we can have a system that truly is merit-based for judicial selection.”

Nurrenbern was referring to the panel of lawyers and citizens who get to pick three recommendations to send to Parson. The process, known as The Missouri Plan, has been hailed by its supporters for taking politics out of the judicial branch.

But some Republicans have become disillusioned with the court in recent years, railing against decisions they consider to be too liberal. Last month, the court issued a unanimous — and scathing — ruling that Republican Attorney General Andrew Bailey overstepped his authority when he tried to inflate the estimated cost of a proposed petition to restore abortion rights.

“I think, broadly, the court, since the last 20 years, has been kind of a left-leaning or more of a tilt to the left,” said James Harris, a Jefferson City-based Republican consultant. “It really gives an opportunity to kind of move the court back to the center.”

Parson spokesperson Johnathan Shiflett in a statement to The Star offered little insight into who the Republican governor was considering for the two vacancies, saying he would “choose who he views is the best qualified candidate to fairly interpret the law as written” from the list of candidates recommended to him.

“Governor Parson does not yet know who will be part of the panel and cannot speculate on how the makeup of the Court will be impacted,” Shiflett said.

Draper will retire on Thursday after turning 70, the court’s mandatory retirement age. He previously served as just the state’s second Black chief justice in history.

More than 20 people have applied for the job, including state Sen. Tony Luetkemeyer, a Parkville Republican who successfully passed legislation to force Kansas City to spend more on police, Cole County Associate Circuit Judge Christopher Limbaugh, the son of a federal court judge and cousin to the late conservative talk radio host Rush Limbaugh and Kelly Broniec, the chief judge of the Missouri Court of Appeals Eastern District.

After Draper’s retirement, Chief Justice Mary R. Russell and Judge Paul C. Wilson will be the remaining judges appointed by Democratic governors. And Judge Robin Ransom, appointed by Parson in 2021, will be the only remaining Black judge.

Of the more than 20 people who applied for Draper’s job, one, Jackson County Judge Kenneth R. Garrett III, is Black.

State Rep. Jamie Johnson, a Black Kansas City Democrat, said she would like to see outreach for qualified candidates who are also people of color. But, she said, she did not know if that would happen.

Breckenridge is also turning 70 and retiring this year but has not yet set a retirement date and the high court has not announced any applicants.

State Rep. Mike Henderson, a Bonne Terre Republican, said in an interview that he would like to see Parson pick judges that lean more conservative. Henderson would also like to see more judges from the southern part of Missouri.

“Missouri right now is a red state no matter how we look at it, that’s how it is,” he said. “I’d like to see a judge that maybe represents the thoughts of the majority of the state.”

While some worry about the possibility of the court potentially moving more to the political right, Parson won’t be the only person deciding who will fill the vacancies under The Missouri Plan. A seven-member commission made up of Russell, three lawyers elected by the Missouri Bar and three citizens selected by Parson will interview the candidates and nominate three people that Parson can choose from.

The Republican governor then has two choices: appoint someone from those three names or reject the pick and allow the commission to fill the vacancy.

State Rep. Doug Richey, an Excelsior Springs Republican who is running for state Senate, signaled in an interview with The Star that The Missouri Plan would prevent Parson’s picks from being overtly partisan.

“The Missouri court plan functions in such a way as to protect against partisan picks when it comes to the Supreme Court of Missouri,” he said. “So what we all fully expect to occur is that the three options provided to the governor to pick from will not reflect the political landscape of the governor’s office.”

Missouri Supreme Court judges are typically pro-plaintiff in personal injury cases and more conservative in criminal cases, said Jim Layton, a former Missouri solicitor general under Democratic Attorneys General Jay Nixon and Chris Koster. Parson, he said, will probably want a candidate who is pro-police and pro-prosecutors in criminal cases.

“There are certainly applicants who are Republicans, strong partisan Republicans, have taken conservative positions in litigation or otherwise,” Layton said. “But who knows if they’re the ones who will be given to the governor.”

Tom Fowler, a former chair of the Missouri Republican Party, touted Parson’s previous judicial appointments, saying that his appointments have been “inclined to follow the Constitution and the laws as written and not to try and make new law from the courts.”

When asked if he anticipates less scathing rulings against Republicans under a more conservative Supreme Court, Fowler said he expects changes.

“I think that as you change the composition of the court, you always change the end result of the opinions,” he said. “I would expect that the new court, with the new appointees, will have some differences from the current court.”

The Missouri Supreme Court has been relatively independent of partisan politics in recent years, willing to position itself against the positions and policies of Missouri Republicans. The new appointments have the potential to change that, but it’s not a certainty, said Peverill Squire, a political science professor at the University of Missouri-Columbia.

“I suspect we’ll end up with two conservative justices who have some credentials,” he said.

For some, the Supreme Court becoming more conservative is a foregone conclusion. The real question, some say, is whether Parson’s pick will have the respect of the Republican statewide officials and lawmakers or will Republicans rail against the court if they get an unfavorable ruling?

“It will definitely shift more to the right, but I think that the bigger question is, will whoever gets appointed have the respect of, you know, the attorney general, of all of the what I would consider far-right, who have no respect for the rule of law,” said Senate Minority Leader John Rizzo, an Independence Democrat.

The two appointments also may offer a chance for Parson, who owns a cattle farm in southwestern Bolivar, to pick judges from the southern part of the state.

“Southern Missouri has not been spoken for for about 20 some years since Judge (John C.) Holstein left so there’s going to be some geographical considerations,” said Michael Wolff, a former Missouri Supreme Court judge from 1998 to 2011 who served two years as chief justice.

Harris pointed to several people who applied for the job as good candidates, including Judge Michael E. Gardner, Judge Jennifer R. Growcock, Judge Jack A.L. Goodman, Judge Thomas C. Albus, Judge Stephen S. Davis, Judge John P. Torbitzky, Judge Cristian M. Stevens, Limbaugh and Luetkemeyer.

“There’s really just a ton of very smart individuals,” he said.

Johnson, the Kansas City Democrat, said she’s holding onto hope that the Missouri Supreme Court will remain fair and balanced after Parson’s new appointments, pointing to the conservative shift that occurred at the U.S. Supreme Court.

“I continue to hold out hope, but I wouldn’t be surprised if he shifts the court in a more conservative direction,” she said.

This story has been updated to reflect the retirement date of Judge George W. Draper III.