Law Guest Opinion



Florida Bar wants voters to Understand Historic Challenge to Judicial Merit Retention

This November, Floridians will have an opportunity to vote on whether to retain – on the basis of judicial merit – three sitting Supreme Court justices and 15 state court appellate judges.  

Given national scrutiny and the number of judges at issue, this vote will be of historic import.  Significant funds are likely to be invested by different interest groups opposing various judges and justices.   In part, opposition has been galvanized by the defeat of three sitting justices in Iowa in 2010 and the sense that Florida’s judicial merit system is vulnerable to political attack.

That is unfortunate, but it does present an opportunity to educate the public about Florida’s judiciary. The Florida Bar hopes that with information about judicial merit retention, Floridians will go to the polls on Election Day with a better understanding of the process and the essential role judges fulfill in our democracy.

Confidence in the Courts and The Florida Bar

A core mission of The Florida Bar is promoting the administration of justice. Thus the bar’s recently launched initiative: “The Vote’s in Your Court — Judicial Merit Retention. Know the Facts.”

Importantly, in 1976, the year of the U.S. bicentennial, Floridians took a major step to insulate judges from electioneering politics. Floridians voted to amend the state Constitution to implement the current system of selecting appellate judges on the basis of merit and eliminate the previous system of selecting judges on the basis of politics.

Against a backdrop of scandal in the Florida Supreme Court (at a time when candidates for the Supreme Court campaigned and raised political contributions), Floridians chose a system that would protect judges from the very politics that influence the other two branches of government — the legislative and executive.

As a result of the 1976 vote, appellate judges were taken out of elective politics in favor of a system in which judicial applicants are nominated to and then selected by the governor after being screened by non-partisan Judicial Nominating Commissions. Importantly, voters did not relinquish their right to assess the performance of judges. The new merit system preserved for voters the opportunity to examine judges on the basis of merit through non-partisan judicial merit retention votes.

Judicial retention elections often receive minimal coverage given the stability of the judiciary. But occasionally, groups that are organized around single issues target specific justices and judges. Such is the situation now.

Why Judicial Elections Are Different

While judges can raise money when they have been targeted, the judicial canons governing their conduct prohibit them from responding to direct attacks. Unlike candidates for representative elective office, judicial candidates cannot share views on policy or indicate how they might rule. Candidates for legislative and executive offices have no such prohibitions. Additionally, judges are not affiliated with political parties. Judges, as neutrals, are to make decisions in their courts based on the facts and case law, not the politics of the time. Voters are thus left to consider judges’ reputations for fairness, preparedness, demeanor, ethics, scholarship and integrity. In short, the question before voters in judicial retention votes is whether judges and justices demonstrate qualities consistent with rendering to all fair and impartial justice.

This expectation of fair and impartial justice is central to public confidence in our judiciary.  If there were a fear that judges made decisions based on personal bias or factors such as money, politics, vengeance, race and social status, voters would have little confidence in our system of justice and our judges.  Fortunately, this is not the case.

It is the goal of The Florida Bar’s educational campaign about the judiciary to give voters a better understanding of the important democratic issues at stake.

In addition to articles, speeches and educational materials, the program includes a presentation featuring retired U.S. Supreme Court Justice Sandra Day O’Connor at The Florida Bar Convention in Orlando in June.

The Florida Bar has also prepared a voters guide that answers frequently asked questions about judicial office and merit retention elections. To request a copy, please email votersguide@flabar.org.

I also invite you to learn more about judicial merit retention through resources available at www.floridabar.org/thevotesinyourcourt.

This will be an important year for Florida and its judicial system. The Florida Bar urges voters to learn the facts.

Scott G. Hawkins
Florida Bar President
Shareholder Jones, Foster, Johnston & Stubbs, P.A.

South Florida Legal Guide Midyear 2012 Edition

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