The Florida Bar
The Florida Bar Journal
April, 2012 Volume 86, No. 4
To Retain or Not to Retain — That Is the Question

by Scott G. Hawkins

Page 4

In the March issue of The Florida Bar Journal, I published the column “Demystifying What Judges Do.” The column generally examined the role of judges in our democracy and urged lawyers to help others understand how judges are vital to preserving the “rule of law.”

So often we hear public discussion on the importance of the rule of law. Yet seldom is it acknowledged that the strength of the rule of law depends on the strength of those charged to uphold it: our judges.

Why does debate typically stop with the rule of law, yet fail to examine the qualities of a good judge? It is curious: The qualities of judicial merit are rarely treated in public debate.

Why Does this Matter?
In November 2012, Florida’s voters will be asked to consider the qualities that mark a judge of merit. More particularly, Florida’s citizens will vote on whether to retain 16 state court appellate judges and three state supreme court justices. Voters will decide whether particular judges and justices should continue on the bench. The central question: whether those on the ballot “merit” being retained.

Historical Perspective
In considering the retention vote, recall that the merit system was instituted in 1976. Florida’s citizens amended the Florida Constitution to implement the current system which emphasizes merit (over politics) in judicial appointments. Merit is emphasized when judicial candidates are nominated by nonpartisan judicial nominating commissions and is again emphasized when sitting judges are subject to a nonpartisan merit retention vote. Adopted by popular vote, this merit-based system has functioned uniformly under Governors Askew, Graham, Martinez, Chiles, Bush, Crist, and Scott.

Structural Considerations Relative to Assessing a Judge’s Merit
Florida voters face a difficult challenge when deciding whether a judge merits retention. In part, this difficulty stems from campaign limitations and the nature of judicial office.

Unlike candidates for representative elective office, judicial candidates are prohibited from sharing views on policy or indicating how they might rule in certain cases. Such restrictions on judicial candidates do not burden candidates for representative office. In addition, unlike elected representatives, judges are nonpartisan. Judges, as neutrals, are to make decisions based on the facts and law of the case, not the politics of the time.

In contrast to conventional political campaigns, our system purposefully prohibits the dissemination of information on how judicial candidates might rule. Voters are, thus, left to consider a judge’s reputation for fairness, preparedness, demeanor, ethics, scholarship, and integrity. In short, the question before voters is whether a judge demonstrates qualities consistent with rendering to all fair and impartial justice.

These facts illustrate that voting for a judge differs considerably from other votes in our democracy.

Because of limitations on what judicial candidates can communicate, judicial retention campaigns are unlike other campaigns and contrary to voters’ expectations. Voters look for name recognition and to attribute policy positions with candidate names. Yet our system prohibits such campaigning.

I urge you as members of the Bar to help explain to others (colleagues, friends, neighbors, fellow members of your synagogue or church, the local PTA) the differences between a vote for a representative and a vote to retain a judge or justice. Given restrictions on what judicial candidates can say, the opportunity for opposition groups (which have no such limitations) to generate information that is incomplete and incorrect is substantial. Therefore, your willingness to speak out on the role of judges and their individual reputations is vital. Your engagement matters.

[Revised: 07-06-2012]