Selection of Judges

In fact, a 2002 bipartisan poll commissioned by Justice at Stake, "a national partnership working for fair and impartial courts," found that three in four Americans believed campaign cash affected courtroom decisions. Reform efforts have had both defenders and detractors, but one thing that has not changed is the politics of judgeships.

The Courts

The Florida judiciary is composed of the supreme court, the district courts of appeal, the circuit courts and the county courts. There are seven supreme court judges; the number of judges in district courts of appeal and circuit courts varies, depending on the size of the dockets. Judges are chosen three ways: by the governor, in nonpartisan elections and by merit selection.

Appellate judges are chosen through a merit selection and retention process; trial judges are chosen in nonpartisan elections, but the governor fills vacancies with candidates recommended by a judicial nominating commission.

All judges are required to uphold the highest tenets of the position. The Code of Judicial Conduct for the State of Florida

lays out explicit instructions for judges or candidates for judgeships. According to Canon 7, they are not allowed to participate in inappropriate political activity. These are a few of the exhaustive requirements put forth:

A candidate shall not

• make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office

• make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court

• knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent

The history

Florida’s policies for judicial selection have constantly changed since 1851, when a separate state supreme court was created. Judges served for eight years, circuit judges for six years.

The 1865 constitution called for the governor to appoint supreme court justices for six-year terms, with approval from the senate. The governor could select new justices after the terms ended. Circuit judges were elected by the people.

However, in 1868, the Constitution was again rewritten, requiring that the governor appoint circuit judges to eight-year terms. Supreme court justices were granted lifetime tenure "during good behavior." That same year, county courts were created, with judges serving four years.

Supreme Court justices and county judges were elected; circuit judges were appointed. But in 1948, things changed again. Circuit judges were required to run for election, but the governor could fill vacancies until the next round of elections.

In 1956, the district courts of appeal, presided over by elected judges, were created.

In 1971, then-Gov. Reuben Askew created the Judicial Nominating Council through an executive order to make nominations for vacancies. The council consisted of three active Florida Bar members appointed by the governor; three active bar members appointed by the Florida Bar; and three citizens selected by the six bar members.

The following year, Florida voters approved a ballot measure similar to Askew's executive order, creating Judicial Nominating Commissions to screen applicants and provide the governor with the names of nominees.

Merit Retention

In 1976, however, the system was changed yet again. District Court of Appeal judges and Supreme Court justices were no longer elected; rather, they were appointed by the governor through a merit retention system. Voters could later turn them out of office in retention elections.

According to the Florida Supreme Court, "merit retention is a system of selecting Justices established by the voters when they amended the Florida Constitution in the 1970s. Under merit retention, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission. The Governor must select from the list. Once appointed, Justices eventually must face the voters in a 'yes' or 'no' vote as to whether they should remain in office."

All new Justices go up for retention vote in the election after the first year in office. If a justice is voted out, the governor begins the process again; a justice who is retained embarks on a six-year term, with retention votes coming in the election before the end of the term.

The Nominating Commission

The Florida Judicial Nominating Commission is made up of 26 separate bodies charged with screening applicants wishing to fill vacancies in all 26 courts --- the Supreme Court, the district courts of appeal and the judicial circuits — and providing between three and six names for the governor to choose from.

The Florida Constitution mandates that the commissions be made up of:

• three members appointed by the Florida Bar

• three appointed by the governor who live in the jurisdiction of the court that the commission is responsible for

• and three electors who are selected by the other six members.

At least one third of all members must be women or racially or ethnically diverse.

The timeline

A timeline, provided by the American Judicature Society, highlights the history of reform efforts in Florida:

• In 1978, voters rejected a constitutional amendment that would have extended merit selection and retention to trial court judges.

• In 1992, the senate approved a merit selection and retention bill for trial court judges, but the house failed to act on the measure. During a special legislative session in the same year, the proposed reforms received majority support but failed by two votes to achieve the required two-thirds support for a constitutional amendment. In a subsequent special session, the measure again failed in the senate despite a favorable majority vote.

• In 1998, the Legislature passed a bill requiring the governor to consider the race, ethnicity, and gender of nominees when making appointments to the judicial nominating commissions and requiring that each circuit nominating commission include at least one resident from each county within the circuit. The governor vetoed the bill, primarily because of practical problems with the residency requirement.

• According to a 1998 constitutional amendment, the option of merit selection and retention of trial judges was submitted to voters in each county, but it was overwhelmingly rejected in every jurisdiction. The average affirmative vote was 32%.

• Proponents of merit selection and retention emphasized the number of disciplinary actions against elected judges and the potential for campaign contributions to tarnish the judiciary, while opponents stressed the right to vote for judges and the "closed door, elite" nature of the merit selection process. The Florida Bar spent $80,000 to promote the ballot measure, and another group, Citizens for Judicial Integrity, raised $37,000. The measure also received support in numerous editorials. Opposition to the measure came from the state's minority and women's bar associations, who worried that their gains on the bench would be diminished under merit selection. Members of these organizations formed Citizens for an Open Judiciary and spent approximately $75,000. Both sides offered speakers to address public gatherings and participate in debates. Two debates were sponsored by the American Bar Association and the American Judicature Society.

• In 1990, a federal district court declared unconstitutional a provision of the code of judicial conduct that barred judicial candidates from announcing their views on disputed legal or political issues. The court nevertheless acknowledged the state's interest in preserving the integrity and objectivity of its judiciary. (American Civil Liberties Union v. The Florida Bar)

• In 1995, another code provision was challenged by the ACLU and struck down by a federal court. The impugned rule had prohibited judicial candidates from expending funds for their campaigns or establishing committees to solicit contributions and support earlier than one year before the general election.

Seeking changes

Any time a group wants to change the way judges are selected, it must seek an amendment to the Florida Constitution. Amendments can be proposed by the Legislature, with support from three-fifths of the members of each house, or through a ballot initiative. This can be accomplished by getting petitions signed by a number of voters equal to eight percent of votes cast in the last presidential election. The petitions must also come from at least one-half of the state's congressional districts. Approval by 60 percent of the voters is required for adoption of an amendment.

A notable reform effort took place in 2000, when voters were given the option to decide whether they wanted selection and retention to apply to trial judges as well.

Supporters such as the Florida Bar, argued that elected judges seeking campaign money muddied the bench. They also said that judges should be selected based on merit, and that a retention vote puts the power into the hands of the people.

However, opponents such as Citizens for Judiciary Integrity, labeled the merit selection process elitist and sought an open process. They argued that electing judges was a citizen's right and that elections may increase the number of women and minority judges.

The measure was rejected.

Sources:

The Florida Bar

The Florida Bar Journal

The Florida Supreme Court

Justice at Stake

Bnet

American Judicature Society

The Jacksonville Daily Record

Judicial Qualifications Commission