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June 21, 2018

Editor's Column

Voting for Judges

Mark R. Howard | 4/11/2012

Mark Howard
Mark Howard,
Executive Editor

When I walk into a voting booth on election day, I believe it’s part of my civic obligation to be at least somewhat informed about the issues and candidates on the ballot. The hardest challenge in that regard comes when there’s a “merit retention” vote — the non-partisan, yes-or-no vote on whether a state Supreme Court judge or state district court judge should stay on the bench.

Typically, I know almost nothing about the judges in question. Unless I have some reason to think otherwise, I tend to assume they’re performing competently and vote yes. Most voters apparently feel the same way. In the 30-some years since Florida’s citizens created the “merit” system for choosing and keeping state court judges, voters have never removed a judge from office. The question is whether that 30-year, all-yes voting pattern validates the merit system or whether it amounts to a rubber stamp. If the answer is always yes, why bother?

The merit selection and retention system originated in the early 1970s. As a real two-party political system began to develop in Florida, voters first decided to make state judicial elections “non-partisan” — judges were no longer allowed to run under a party banner or receive backing from a political party. Then, in the mid-1970s, a series of scandals scorched the Florida Supreme Court: Two justices resigned and were later disbarred for judicial misconduct, a third was an alcoholic and a fourth behaved so erratically he was made to submit to a psychiatric exam. (See journalist Martin Dyckman’s excellent book, “A Most Disorderly Court.”)

Those scandals rocked confidence in the judiciary enough that in 1976 voters passed a constitutional amendment that birthed the merit system. Under the system, independent, regional panels called nominating commissions suggest candidates for district court and Supreme Court judgeships to the governor, who then makes the final selections. Once on the bench, judges face a yes-no retention vote in the first election after their appointment, then every six years until mandatory retirement at 70.

There are, broadly speaking, two views of the system’s evolution since 1976. One is that it worked pretty well at minimizing politics until Republicans gained statewide ascendancy. Specifically, in 2001, under Gov. Jeb Bush, the Legislature gave the governor’s office more control over who served on the local nominating panels. The change meant that the Florida Bar, which previously named three members of each nine-member nominating commission outright, instead submits a list of Bar members to the governor, who chooses four to serve on the nominating commission. The governor gets to pick the other five members of the commission outright. The change, the argument goes, has repoliticized the selection process and threatened the independence of the state’s judiciary. Bills in this year’s legislative session would further expand the governor’s power over the panels.

The other view is that the 1970s reforms never really took politics out of the process, but simply restricted them to behind-the scenes maneuvering among political and legal elites over who served on the local nominating panels. Bush and other Republicans believed the selection system needed correction because, however non-partisan it was, it produced few judicial candidates with philosophies like theirs. Those with idealized views of the post-1976 period shouldn’t forget, according to this view, that the nominating commission meetings have never been open to the public. And they shouldn’t forget that the Bar kept a formal statutory role in the merit selection process even after the Bush-era change.

It seems to me that a fair amount of politics is going to attach to whatever process is used to fill positions with the prestige and power of district and Supreme Court judgeships. Shorter term, I’m more concerned with the merit-retention vote. (I think it would be better to eliminate it and simply limit appellate and Supreme Court judges to some fixed term, say 10 or 12 years. But for the moment, we have what we have. )

My concern has to do with interest groups targeting judges over a single ruling on some litmus-test issue, and then attempting to create enough negative publicity that voters remove them from the bench. In 2010, a central Florida tea party group targeted Florida Supreme Court Justices Jorge Labarga and James Perry, who were up for merit retention, over one particular decision. Both won retention votes, but the group claimed it cut into their margins. Three justices up for retention votes this year expect similar campaigns.

The notion that voters should remove a judge over one decision is dangerous and a real threat to an independent judiciary. About the only antidote is for voters to have more complete sources of information about judges’ records. The Florida Bar can’t take positions in retention elections, but is stepping up its information-providing efforts to ensure that voters get a complete picture of a judge’s record.

Gwynne Young, president-elect of the Florida Bar, points out that a judge handles around 2,500 cases a year, and “while we can all disagree with a decision of a court, one decision shouldn’t be grounds to remove a justice.” She rightly likens the judges’ role to that of a referee in an athletic contest — they’re there to interpret the rules, and “not everybody is going to agree with every call. You want judges to be fair and impartial, and you have to evaluate them on the body of their work, not one case.”

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