by Gwynne A. Young
Since I was sworn in as president of The Florida Bar, I have been living and breathing merit retention, during what unfortunately became a highly charged political process at times.
Now that Florida’s voters have spoken and said “yes” to retaining three Supreme Court justices and 15 other appellate judges, it is important to reflect on what we learned in this process and what that teaches us for the future.
Clearly, we must continue our efforts to educate the public not only on the merit selection and retention process and why it is important to keep politics out of the system, but also to continue civics education on the separation of powers; the importance of an independent, fair, and impartial judiciary to our democracy; and the role judges must perform in resolving the disputes before them, regardless of the lack of popularity for certain parties or certain positions.
Thus, just because the 2012 general election is over does not mean The Florida Bar’s educational efforts about merit retention should end.
While eschewing politics, we launched a vigorous statewide education program called “The Vote’s In YOUR COURT — Judicial Merit Retention, Know the Facts,” that included a website full of information, the distribution of more than 350,000 voter guides, public service announcements on public radio stations, a speakers’ bureau, participation in Bar-sponsored and community events, social media campaigns via Twitter and Facebook, and an educational video on YouTube.
That is appropriate to carry out the Bar’s role in advocating and educating on issues that impact the administration of justice, and that is fully consistent with the Bar’s efforts in this regard in the past. Since the first merit retention election in 1978, The Florida Bar has provided consumers with biographical information on the judges and justices up for retention, and we have conducted a poll of members with results released to the news media.
Going forward, the Bar should continue and increase its merit retention education efforts because I have witnessed firsthand that the need for education, even among lawyers, is great. It’s clear to me that merit retention is just not on the radar screen of many otherwise intelligent, well-meaning voters. I was talking to a young lawyer at one event, and she thought merit retention had to do with teacher’s merit pay.
The whole experience has reinforced the need for educating the public — including lawyers — about nonpartisan merit retention elections and the role of judges and justices in our third, co-equal branch of government.
In the four months leading up to the election, I spoke to more than 14 newspaper editorial boards and at dozens and dozens of public meetings across the state. I’ve been interviewed by reporters for television, radio, newspapers, business publications, and magazines about the purpose of merit retention elections and why we have them in Florida.
Because The Florida Bar is a nonpartisan, mandatory-membership organization, I was careful never to tell people how to vote. But it was my duty to do what I could to educate people about why we have merit retention for our justices and appellate judges, and that merit selection and retention was enacted to address the corruption on the elected high court in the ’60s and ’70s.
I did my best to explain to people who have never set foot in a courtroom what the role of a fair jurist should be, if we are to ensure the judiciary is not beholden to anyone but the citizens of Florida they serve, with decisions based on the rule of law, not political payback.
I did stress that a fair and impartial judiciary, free from political or special interest influence, is the purpose of Florida’s nonpartisan merit retention elections for appellate judges. And I did warn that playing politics with the Supreme Court, just because one may disagree with a decision, is not a reason to vote judges or justices off the bench.
We want judges to make decisions that may not be popular, if that’s the right decision. And if they are making decisions because they are worried about how people are going to react, then they are violating the canons governing them and not doing their jobs.
“When the U.S. Supreme Court said, ‘separate but equal’ is not good enough, in Brown vs. Board of Education, that was not a popular decision. But it was the right decision,” as I said on WTSP, Channel 10, Tampa Bay News’ voter information special and news stories. Certainly, many people in this country wanted to “impeach Earl Warren” at the time. Had that occurred, however, or had he been voted off under some merit retention program, it would have terribly damaged our country’s independent judiciary.
Beyond the 2012 ballot, this election has taught us there is still a need for civics education for both children and adults, so that future and current voters understand on a state and national level about the separation of powers, the role of judges, and why it’s important to keep politics out of the process.
We already have enthusiastic volunteers enlisted for Justice Teaching, Justice Fred Lewis’ initiative that teams local attorneys and judges with every school in the state to teach students about their constitutional rights and responsibilities.
Another group of about 80 trained lawyers made presentations on merit retention, and I hope they will sign on and be joined by others to teach the fundamentals of government and the courts to adult civic and community groups, through Benchmarks, a program created by The Florida Bar’s Constitutional Judiciary Committee (formerly known as the Judicial Independence Committee).
While Florida won’t have another merit retention election until 2014, we need to commit to a greater level of education going forward. Rather than be reactive to a particular election, the Bar needs to be proactive in our merit retention education efforts. Let’s do all we can to make sure the citizens of Florida cast an educated vote in future merit retention elections.
Right now the system worked, and we should be proud of the many members of our profession who stepped forward to spread the message about the importance of fair and impartial courts in our state and why voters should recognize that in addressing merit retention questions on their ballots.