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THE CHAIRMAN: The amendment hav-
ing been seconded, the Chair recognizes
Delegate Johnson to speak to the amend-
ment. Delegate Johnson, the Chair is not
clear. Under the debate schedule, I had
taken it that controlled debate was on sec-
tion 5.19. Is that correct?
DELEGATE JOHNSON: My under-
standing, Mr. Chairman, is that it per-
tained to sections 5.15 through 5.19. I may
be in error about that. However, I do not
think that much controlled debate will be
necessary.
THE CHAIRMAN: All right. Let me ask
you, are there any other minority amend-
ments to sections 5.16, 5.17, 5.18, 5.19?
DELEGATE JOHNSON: There may be,
depending on the action of the Committee
of the Whole with respect to section 5.15.
THE CHAIRMAN: I think we had
better then consider this as controlled de-
bate for the group of sections with respect
to the related amendments, related in the
sense of being recommended to Amendment
No. 31, which would have the effect of
eliminating a judge as a member of the
commission. Is this correct?
DELEGATE JOHNSON: With all due
respect, yes, Mr. Chairman.
THE CHAIRMAN: The Chair recognizes
Delegate Johnson.
DELEGATE JOHNSON: Mr. Chairman,
and ladies and gentlemen, in spite of the
fact that I feel like General Custer at the
last stand, when he allegedly said, "I
can't understand any of this, they all
seemed very friendly at the dance last
night," this may be our last stand, and it
is a very important one, and I urge you to
give it the consideration that it deserves.
The purpose of the amendment with re-
spect to section 5.15 and the following sec-
tions is to take the judge off the spot, if
you will, and to remove the judge from
what, by the actions of the Committee of
the Whole we hope, will be an impartial
nominating commission.
Let me tell you why in just a moment.
First, by removing judges from the nomi-
nating commission, the judiciary itself is
free from possible taint with respect to
conflict of interest. A member of the com-
mission may not be considered for appoint-
ment, for obvious reasons, and this is dealt
with in a later section. The minority mem-
bers of the Judicial Branch Committee
feel that sitting judges should be kept off
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the nominating commission because they
will publicly be accused of attempting to
stack the nominations with their friends,
no matter how untrue this may be.
Not having a judicial member on the
nominating commission does not mean that /
the Commission could not consult with
judges during their delib?rations; and in-
deed, I submit that they probably will, and
with a great deal more freedom.
A second important attribute of this pro-
posal is that an even number of persons
would thereby be involved on the nomi-
nating commission. We are speaking now
of section 5.15, and if this amendment is
adopted, we would have six lawyers and six
non-lawyers on the appellate court nomi-
nating commission. In our opinion, this
might well require a greater effort to ob-
tain a consensus among the members than
otherwise would have been the case. The
even number further would provide a check
on any efforts a governor might make in
stacking the nominating commission in his
favor.
For these reasons, Mr. Chairman and
fellow delegates, I urge the adoption of
this amendment.
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: Mr. Chairman,
ladies and gentlemen of the Committee of
the Whole: I rise to oppose this amend-
ment.
We have heard considerable d:gate on
this article regarding the power of the
judges, and now the indication is that the
judges or a judge might try to dominate a
nominating commission.
It was the view of the majority of our
Committee and a view which I share that
the usefulness of a judge on a nominating
commission is very great. It seems to me
that a judge is in a peculiar position to
know best the abilities of the lawyers who
practice before the bench. His evaluation
of those who might be receptive to ap-
pointment is more valuable than that of
associate lawyers, as well as laymen.
In our telephone conversation or confer-
ence of one hour with the nominating com-
mission in Missouri, it is my recollection
that the specific quastion was asked, wheth-
er there had been any effort there over the
long period of years since this plan has
been in effect in that State for the judge
to dominate the commission.
The answer was in the negative.
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