The Merits of Merit Retention: Legal Scholars Debate Florida’s System for Choosing Justices

By: Eric Giunta | Posted: October 17, 2012 3:55 AM
Major Harding, Richard Levenstein, Chris Bonneau and Stephen Ware

From left: Major B. Harding, Richard H. Levenstein, Chris W. Bonneau and Stephen J. Ware

Attorney Alan Orantes Forst spoke for many who attended Monday night’s panel discussion hosted by the Federalist Society for Law and Public Policy Studies, the nation’s premier fellowship for conservative and libertarian lawyers and law students.

“Thank you to the Federalist Society for having a balanced panel with a diversity of opinions, an educational effort that did not cost us $300,000,” he exclaimed. “It may be the first time in state history that we’re having a discussion about this.”

The forum, titled “Judicial Merit Retention in Florida,” was held at the Florida State University College of Law Advocacy Center, and strongly contrasted with the ostensible panel-cum-campaign stop that took place at the law school almost two weeks ago.  

The $300,000 Forst referred to is the amount the Florida Bar is spending on its “educational program” that critics say amounts to little more than an extended campaign shill on behalf of three controversial Supreme Court justices: Barbara Pariente, R. Fred Lewis, and Peggy Quince. The three are accused of being left-wing activists, and are up for retention on the November ballot.

The Federalist Society panel, moderated by dean of the law school Donald J. Weidner, did not discuss the justices themselves; it debated the merits of the system by which they are appointed and retained.

Under current Florida law, state appeals court judges and Supreme Court justices are appointed by the governor, from lists of candidates submitted to him by a Judicial Nominating Commission (JNC). Each of the JNC’s nine members is appointed by the governor, though four of them must be selected from lists of nominees submitted by the Board of Governors of the Florida Bar. These judges and justices serve six-year terms, at the conclusion of which voters decide whether they should be retained in office.

Two of the panelists, attorney and legal scholar Richard H. Levenstein and former state Supreme Court justice Major B. Harding, defended the retention system. Stephen J. Ware, professor of law at the University of Kansas School of Law, argued in favor of the Florida Amendment 5 reforms which would bring the state system for judicial selection more in line with the federal. University of Pittsburgh associate professor of political science Chris W. Bonneau argued Florida should democratically elect its judges.

Ware frankly conceded that “judges make law,” in the sense that “when statutes or constitutional provisions are vague or ambiguous, and reasonable people can disagree about the best interpretation of them, judges have some discretion in interpreting those statutes and constitutions, and in doing so [they] make law.”

Ware said there were a couple of models of judicial selection that were compatible with democratic values: direct popular election is one; another is the Senate-confirmation model employed by the federal government: an elected president appoints judges who must be confirmed by elected senators.

Florida’s merit-retention system, Ware said, “fails the basic test of democratic legitimacy, in that it makes a lawyer’s vote worth more than a nonlawyer’s vote. In a democracy, lawyers do not deserve more power than other citizens in selecting lawmakers.” He suggested that Florida should change to a Senate-confirmation model of judicial appointment, saying it would safeguard both judicial independence and the democratic principle.

"Nobody turns out just to vote for the Supreme Court judges," Bonneau concluded after citing statistics to that effect. "In retention elections, you don't have a meaningful choice. You may not like the judge, but you don't know who the governor is going to appoint." He said this resulted in a relatively dramatic “fall-off” in voter interest in merit retention races. He said there was no evidence that popular elections result in lower-quality judiciaries than executive appointments do.

"For heaven's sake, don't go back to political party elections that created the need for the change [to merit retention] in the first place," an impassioned Harding urged attendees. He estimated that about 70 percent of jurists who face ethics charges before the state Judicial Qualifications Commission are democratically elected county and circuit court judges, and only 30 percent are appeals court appointees.

After thanking the Federalist Society for hosting the panel, Forst asked the participants whether voters should consider judges' rulings when deciding whether to retain them, or whether voters should solely consider whether they have engaged in criminal behavior (as the candidates and their supporters are insisting).

“Voters under the current rules get to look at whatever the heck they want when deciding whether or not to retain a judge,” replied Ware. “Frankly, it’s paternalistic for the [justices] and the Bar to tell voters what they are or are not allowed to consider.”

Asked if the Florida Bar should do more to educate voters on the merit-retention process, Ware replied with an emphatic “no.”

“I travel around the country talking with lawyers and others about judicial selection and retention and in every state it’s amazing how the lawyers always say their state judges are very meritorious,” he said. “If you’re a practicing lawyer, are you going to criticize the judges before whom you and your clients are going to appear? The last people we can look to for unbiased information on the judges is the Bar.

Levenstein and Harding responded by noting that the judicial merit polls taken by the Florida Bar are conducted anonymously. In August, the Bar mailed out its latest survey to 68,000 of the state’s licensed attorneys. About 12 percent of recipients responded, 90 percent of them rating Justices Pariente, Lewis, and Quince positively.

Ware suggested that attorneys have a perverse interest in maintaining a judicial selection system that favors the political interests of the state legal establishment.

"The framers [of the Constitution] were very aware of the danger of factions – or, as we would now say, interest groups,” he said. “If a framer heard a member of the Florida Bar defending the system that gives members of the Florida Bar [special rights in selecting judges], that framer would have had no difficulty understanding what was going on.”

Reach Eric Giunta at egiunta@sunshinestatenews.com or at (954) 235-9116. 

Comments (6)

Jefferson Knight
9:07AM OCT 17TH 2012
The Miami Chapter of the Federalist Society also had a balanced program, in September. It was videoed and is available online at the Society's website. Panelists were Scott Hawkins, immediate past president of the Florida Bar, Vanderbilt Law School Professor Brian Fitzpatrick. The moderator was Dean Alex Acosta of the FIU Law School.
6:39AM OCT 17TH 2012
Florida is doing it right. The problem is not Florida's retention policy it is the appointments made on political philosophy and not on their knowledge of laws, understanding of the Constitution, and commitment to follow both. The three stooges up for retention have demonstrated time and again an aversion to follow the Constitution to protect the people against the Government. They have trampled individual property rights, voting rights, our tax payer rights, all in the service of the Government. These bozos should never have been appointed in the first place. Now, that it is clear that the Huey, Dewey, and Louie are most likely going to be dumped, they don't want Rick Scott to appoint the replacements. I trust Rick Scott more than I trust the voters who elected Obama.
5:31PM OCT 17TH 2012
Yes, you've made it very clear that you want partisan political justice of "your way or the highway". . . . yes, let's throw away that blindfolded Lady Justice and have a don't-know-about-the-law but I know what the outcome should be judicial system . . . .

Hate to tell you this, but the MAJORITY of Florida voters elected Obama in 2008 . . . . . and he got 1.5 million more votes than Rick Scott did in 2010 (i.e. 60% more). . . . . . .you just don't trust the majority of Floridian voters . . . . you just want your brand of judicial tyranity of the minority . . . .

Once again, you've displayed your hateful idealogical stridency and ignorance.

Franklin Thompson
6:17AM OCT 17TH 2012
Call it what you will but if a judge, stays or does not stay in office (whether appointed or elected) based upon my VOTE, then it IS political and people have a right to know how the judge aligns themselves; not as Democrat or Republican but as liberal or conservative.
Franklin Thompson
6:16AM OCT 17TH 2012
Call it what you will but if a judge, stays or does not stay in office (whether appointed or elected) based upon my VOTE, then it IS political and people have a right to know how the office holder or judge aligns themselves; not as Democrat or Republican but as liberal or conservative.
5:41PM OCT 17TH 2012
Then in your world, if it is political, then a political party should be able to support a candidate, right.

Funny, but that's illegal and a punishable 2nd degree misdemeanor, and in conflict with your partisan ideas about the nature of the retention vote. Here's relevant parts of the statute:


105.011 Definitions.—
(1) As used in this chapter, the term “judicial office” includes the office of:
(a) Justice of the Supreme Court.
(b) Judge of a district court of appeal.
(c) Judge of a circuit court.
(d) County court judge.
(2) A judicial office is a nonpartisan office, and a candidate for election or retention thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

105.071 Candidates for judicial office; limitations on political activity.—A candidate for judicial office shall not:
(1) Participate in any partisan political party activities, except that such candidate may register to vote as a member of any political party and may vote in any party primary for candidates for nomination of the party in which she or he is registered to vote.
(2) Campaign as a member of any political party.
(3) Publicly represent or advertise herself or himself as a member of any political party.
(4) Endorse any candidate.
(5) Make political speeches other than in the candidate’s own behalf.
(6) Make contributions to political party funds.
(7) Accept contributions from any political party.
(8) Solicit contributions for any political party.
(9) Accept or retain a place on any political party committee.
(10) Make any contribution to any person, group, or organization for its endorsement to judicial office.
(11) Agree to pay all or any part of any advertisement sponsored by any person, group, or organization wherein the candidate may be endorsed for judicial office by any such person, group, or organization.
A candidate for judicial office or retention therein who violates the provisions of this section is liable for a civil fine of up to $1,000 to be determined by the Florida Elections Commission.

105.09 Political activity in behalf of a candidate for judicial office limited.—
(1) No political party or partisan political organization shall endorse, support, or assist any candidate in a campaign for election to judicial office.
(2) Any person who knowingly, in an individual capacity or as an officer of an organization, violates the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

So, I guess you just didn't know what you're writing about, once again, but just want partisan political justice "your way or the highway".


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