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News Story
Updated: 10/04/2012 08:00:36AM

Judging the judges

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S.L. Frisbie

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For many years, all judges in Florida were chosen by popular election, like other elected officials.

There was always the concern that popularity was not necessarily compatible with being a good judge, though we generally had pretty good judges.

Over the years, courts in Florida and many other states began devising “merit selection” and “merit retention” plans. Florida has a hybrid system with popular election of trial court (county and circuit) judges, and merit selection and retention at the District Court of Appeals and Florida Supreme Court levels.

(Incumbent trial court judges sometimes thwart this system by retiring in mid-term, opening the way to appointment of their successors to fill their vacancies.)

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Let us understand one thing: merit selection does not “take the politics out of selecting judges.”

It takes the political process away from the voters and puts it into the hands of whatever judicial selection body is appointed for that purpose. A lawyer who is well qualified vis a vis understanding of the law but unpopular with his peers is no more likely to be selected by a judicial nominating commission than a lawyer with similar characteristics is to be elected by the public.

And in most, if not all, merit selection systems, the final appointment is made by the governor. If that is not a political selection, I don’t know what is.

Politics is not an evil term, or an evil institution. It is the process by which government operates.

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In Florida, trial court judges are subject to re-election, which means they can draw an opponent at the end of every term. Few incumbent judges face opposition, and even fewer are defeated, but there is a salutary effect in a system in which trial court judges can be required to answer to the voters.

At the appeal and supreme court levels in Florida, judges appear on a merit retention ballot, meaning that voters decide whether or not the judge shall keep his or her position. There is no opposing candidate.

If a judge gets a “no confidence” vote from the public, the position is vacated, and a successor is chosen through the merit selection process.

Any incumbent appellate level judge will receive a certain number of negative votes from the “don’t re-elect anybody” crowd in any election. But removal from office almost never happens.

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In next month’s election, an organized effort has been mounted to end the terms of three Florida Supreme Court judges. It is based on charges of “judicial activism,” and most of the publicity it has received is coming from the judges themselves, who object to the opposition to their retention.

Whether the charges of “judicial activism” are valid, and for that matter, whether they are grounds for removal, will be decided by the voters.

That is what the merit selection/merit retention process is all about.

If voters do not retain the authority to remove judges, the system is meaningless.

If appeal court judges are required to answer to the voters for their conduct on the bench, perhaps there is more merit to the merit retention process than some of its staunchest proponents are comfortable with.

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(S. L. Frisbie is retired. He finds great merit in the observation of some public officials, among them former County Commissioner Frank B. Smith, Jr., better known as Bubba: When it comes to the elective process, “The people are never wrong.” That’s what the elective process is all about.)




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