The Florida Bar
The Florida Bar Journal
May, 2012 Volume 86, No. 5
Why Do We Trust Judges?

by Scott G. Hawkins

Page 4

“The price of greatness is responsibility.” — Winston Churchill

Bedrock to our democracy is the expectation that in an American court, one will receive a fair trial. While there are limited examples of possible imbalance, the norm by far is fairness to all. Hence the widely held belief that, regardless of money, political affiliation, race, or social status, one will have a fair and impartial judge in America.

This expectation is key to public confidence in our judiciary. If there was fear that judges made decisions based on personal bias or factors like money, politics, vengeance, race, and social status, then there would be little confidence in our system of justice and our judges. Fortunately, as we celebrate Law Day on May 1, we know this is not the case.

Historical Effort to De-politicize the Courts
In 1976, Floridians took steps to insulate our system of justice from politics. Floridians voted to amend the Florida Constitution to implement the current system of selecting Florida’s judges on the basis of merit and to eliminate the old 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 like candidates for representative office), Floridians chose to amend the constitution to institute a new system. As a result, judges were taken out of elective politics in favor of a system where judicial applicants are nominated and submitted to the governor after being screened by nonpartisan commissions. Importantly, the new merit system gave voters an opportunity to assess a sitting judge on the basis of merit through a nonpartisan judicial merit retention vote.

In short, through this constitutional amendment, Florida’s voters sought to de-politicize the courts — to remove judges from politics. Importantly, this system has worked uniformly under seven governors, both Republican and Democratic.

Historical Test of Our System Is Upon Us
In November 2012, Florida’s citizens will have an historic 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 historical import. Significant funds are likely to be invested by various interests 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.

Confidence in the Courts and The Florida Bar
A core mission of The Florida Bar is to promote the administration of justice and to promote confidence in our courts. Central to this mission is to ensure that Florida’s voters have an opportunity 1) to learn about the history of the judicial merit system, 2) to learn about how the merit system has worked for nearly 40 years, 3) to learn about the critical roles judges fulfill in our constitutional democracy, and 4) to learn how vitally important it is that fair and impartial judges oversee Florida’s courts to ensure confidence in our judiciary.

With its responsibility to promote the administration of justice, The Florida Bar is launching an educational program to address these issues in the context of this historic merit retention vote. Effective May 1, to coincide with Law Day, the Bar will launch its educational effort: “The Vote’s in YOUR Court Judicial Merit Retention. Know the Facts.”

This comprehensive communication project aims to educate Florida voters on the merit retention process, encourage voters to learn more about the justices and judges up for merit retention, and to urge voters to make informed votes in the November 2012 election. Through collateral development, public relations, advertising, media relations, social media, and grassroots advocacy, these communication efforts will reach voters across Florida and heighten voter awareness and engagement in this historic vote. The program will also involve various educational opportunities, including a presentation featuring retired U.S. Supreme Court Justice Sandra Day O’Connor (at The Florida Bar Convention in Orlando in June), speeches by Bar leaders, and the broad dissemination of education materials to the public.

The emphasis in the Bar’s effort will be about facts. Voters will be urged to learn the facts about judicial merit, about how the system has functioned, about the voters’ decision in 1976 to remove judges from elective politics, and about the importance of evaluating the facts of a judge’s record based on a body of work and not a particular ruling. Further, voters will be urged to learn about the role judges fulfill in our democracy, the constrained roles they fulfill in the trial and appellate courts (the subject of my March column), and the limitations on judicial office and judicial campaigning (the subject of my April column).

The goal is to promote public understanding of the facts underlying the merit retention vote in the hopes that confidence in Florida’s judiciary will grow. This educational effort is sponsored by the Board of Governors of The Florida Bar, and the leadership team includes Sandra Diamond, board member from St. Petersburg; Sean Desmond, board member and current president of the Young Lawyers Division; President-elect Gwynne Young; and President-elect Designate Eugene Pettis.

It is with a deep sense of responsibility that the Bar has undertaken this educational effort. I urge each of you to embrace this public education campaign and to take responsibility in your own spheres to enhance voter understanding. Such efforts are key to maintaining confidence in our courts.

[Revised: 07-06-2012]