The Florida Bar

Florida Bar Journal

  1. Home
  2. News & Events
  3. Florida Bar Journal
The Florida Bar Journal
May, 2016 Volume 90, No. 5
Preserving a Fair and Impartial Judiciary: The Cornerstone of Our Democracy

by Justice Barbara J. Pariente and F. James Robinson

Page 18


I write to highlight the important civic education program of the National Association of Women Judges (NAWJ), the Informed Voters Project, available online at, and why I urge every lawyer and judge to become familiar with the program’s materials, PowerPoint presentations, and award-winning video narrated by former Justice Sandra Day O’Connor. These materials are also available and easily accessible at The Florida Bar’s website.1

Each of us, as lawyers and judges, play a critical role in reminding our fellow citizens of the importance of a fair and impartial judiciary in our democracy. This public outreach is even more critical when considering the influx of special interest money in merit retention elections where campaigns opposing the retention of judges reduce the operation and purpose of the judiciary to soundbites. Phrases such as “activists,” “legislating from the bench,” “unelected,” “ignoring the will of the voters,” and “out of control” are often used by those seeking to attack judges for decisions with which they disagree. Unfortunately, these soundbites have the potential of resonating with the public and uniformly have the potential for a corrosive effect on our judiciary.

We are all aware that since the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010), special interest groups have spent record sums of money to influence the outcome of elections across the country. Less known, however, is that these groups have not limited their spending to campaigns that are inherently political in nature, but have also turned their attention to state judicial merit retention elections, which are not intended to be political at all. As one recent report found, “average spending per retention race has surged in recent years — from an average of $17,000 per seat between 2001-08 to $178,000 per seat between 2009-14, a tenfold increase.”2

This increased spending in judicial merit retention elections is obviously troubling. Indeed, public polling disturbingly indicates that 87 percent of voters believe that campaign contributions and other special interest spending in judicial elections influence how judges make decisions on the bench.3 The corrosive effect on the public’s confidence in the integrity of our judiciary cannot be doubted when an overwhelming percentage of voters believe judges are influenced by special interest money.

Despite the fact that Florida’s merit selection and retention system for selecting and retaining appellate and Supreme Court judges had been in place for over 40 years, I along with my colleagues, Justice Fred Lewis and Justice Peggy Quince, were the targets of unprecedented political attacks in our merit retention election in 2012. These attacks were not based on our ethics or competence, but because of disagreement with a handful of decisions the court had issued.

While Florida voters overwhelmingly retained the three of us in 2012, the entire experience reinforced for me the importance of the ongoing need for consistent outreach to educate the public. The Florida Bar has played its part with civic education programs, such as The Vote’s In Your Court and its ongoing excellent civics education program, Benchmarks: Raising the Bar on Civic Education. NAWJ’s Informed Voter Project is another great resource for educating the public about the role of our courts. The project recognizes that the threat against our courts requires a collective and consistent response that takes into account existential threats to the fairness and impartiality of our courts — such as misleading messages that attempt to inject politics into the third branch of our democracy. We are fortunate to have many partners in this effort, including the assistance of the Florida Association for Women Lawyers, as well as national groups like the American Board of Trial Advocates (ABOTA).

I am thankful for the efforts of The Florida Bar to cast light on this important issue by reprinting portions of an article I co-authored detailing the purpose and nature of the merit selection and retention process, as well as the current threats to this process. Hopefully, by continuing the conversation about the important role our judiciary plays in our democracy, we can ensure that our state courts remain fair and impartial.
Justice Barbara J. Pariente is co-chair with Justice Robin Hudson of the North Carolina Supreme Court of the NAWJ Judicial Independence Committee and co-chair of the Florida Informed Voter’s Project.

Negative political attack ads and increased spending by special interest groups in political elections have sadly spilled over into state court retention elections, with potentially devastating effects — the loss of public trust and confidence in the fairness and impartiality of judges.4 While federal judges are insulated from political influence through lifetime appointments under our federal Constitution, almost all states have some form of judicial elections.

On April 29, 2015, Chief Justice John G. Roberts, Jr., writing for the U.S. Supreme Court majority in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015), recognized that “judges are not politicians, even when they come to the bench by way of the ballot. And a [s]tate’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A [s]tate may assure its people that judges will apply the law without fear or favor.”5

As important as this recent decision is to preserving the integrity of the judiciary, the reality is that state court judges are currently without protection from political attacks from special interest groups, especially when they appear on the ballot for a merit retention election. In her concurrence in Williams-Yulee, Justice Ruth Bader Ginsburg recognized the recent increase in spending on opposition advertisements in judicial retention elections and noted that the “[d]isproportionate spending to influence court judgments threaten both the appearance and actuality of judicial independence.”6

Taking advantage of the vulnerability of state court judges who are constrained by many ethical limitations and by wise self-imposed restrictions on their public comments, some politicians and special interest groups have declared open season on judges who they claim are out-of-step with the march of public opinion.7 Although the mainstream press and even political satirists have taken notice of this disturbing trend and criticized the underlying flaws of judicial elections,8 unfortunately many times no distinction has been drawn between states that have contested partisan judicial elections and those states that have adopted merit selection and retention as the means for choosing their judges.

Blurring the distinction between merit retention elections, where a judge is attacked by partisan political forces, and contested judicial elections between competing candidates, particularly in states where the judges are actually affiliated with a political party, conflates the important distinction between the two forms of selecting judges. It also fails to appreciate the reason that judicial merit selection and retention was hailed as an important 20th century reform in the first place — to remove politics from the process of picking judges.

In this article, we explore the increasing political attacks on our state courts, focusing particularly on merit selection and retention and the grave dangers those attacks present to the judiciary. We explain the purpose of judicial merit selection and retention, highlight how this method differs from competitive elections, explore some recent examples of efforts to politicize merit retention elections, and propose specific measures every Bar member can take to ensure that our judiciary remains a fair and impartial cornerstone of our democracy.

Merit Selection and Retention as a Mechanism to Insulate Judges from Politics
The growing threat of politically motivated attacks is of particular concern in judicial merit retention elections. These elections are generally low-information contests, in which a sitting judge appears on the ballot for a “yes” or “no” vote without an opponent. Studies have shown that the public often does not understand what they are being asked to decide or even why the judge is on the ballot at all.9 Given this context, negative attacks, especially those at the last minute, have a much greater opportunity for success in shaping what the public thinks about a targeted judge in a merit retention election.

These attacks based on politics are antithetical to the very concept of our democracy — that the judiciary exists to protect constitutional rights guaranteed in state and federal constitutions, rather than to answer to the changing winds of the political climate of the day. Judges must decide cases based on the rule of law and the facts. They are accountable to the law and the Constitution and not to what is popular or politically correct. “A judge is bound to decide each case fairly in accord with the relevant facts and the applicable law, even when the decision is not,” as former Chief Justice of the U.S. Supreme Court William Rehnquist famously stated, “what the home crowd wants.”10

Every judge who takes the oath of office swears to “protect and defend the Constitution of the United States.” Every judge who takes the bench also understands the fundamental tenet that judges must not be influenced by popular or personal opinion, partisan or special interest demands, or threats of losing their job if they issue an unpopular but legally correct ruling.

As former Iowa Supreme Court Chief Justice Marsha Ternus has said, “If the law doesn’t protect everybody — if the law depends on who is standing in front of the judge — then we don’t have neutral decision-making, we don’t have fair and impartial judges, and we cannot say that we are a society governed by the rule of law.”11 Applying the same rules, in the same manner, to everyone protects the rights of all citizens and not just the rights of the most vocal, the most organized, the most popular, or the most powerful. It is the bedrock principle of a fair and impartial justice system.

Merit selection and retention of state court judges was viewed as an important reform during the 20th century, having as its principal goal the appointment of qualified and ethical judges who would not be subject to the vicissitudes of political change or the shifting sands of public opinion. This reform measure was also intended to shield a judge from having to campaign for his or her position and to insulate judges from all of the inherent problems they uniquely face when running for election. But merit selection and retention systems did not eliminate elections altogether because, under merit retention, judges still appear on the ballot at the end of each term to ask the voters whether that judge should remain, or be “retained,” in office.

The merit selection and retention system was intended to avoid the bruising characteristics of political attacks, partisan tactics, and competitive contests. It was envisioned that the judge would have no basis or need to campaign to keep his or her seat. These elections sought to evaluate a judge based on his or her judicial performance — has the judge committed a serious ethical indiscretion or is the judge incompetent? — and not based on the popularity of a single decision or political considerations.

Merit retention elections were designed to remove partisan politics and special interests from the process of choosing judges. The absence of a challenger who might benefit from the politicization of the contest — an element present in other judicial elections, where two candidates run against each other for a seat on the bench, and especially in partisan judicial elections, where judges are actually affiliated with a political party — was a key component of this reform.

Most importantly, merit selection and retention sought to insulate judges from shifts in public opinion that can undermine the consistency and fairness in the law, while still maintaining the public’s ability to remove an unethical or unqualified judge from office. Judicial merit retention elections, then, were never meant to serve as a tool for intimidation or payback for a particular unpopular, but legally sound, decision.

Yet, in today’s increasingly polarized political atmosphere, some special interest groups and political figures have found the value proposition of altering the makeup of a state supreme court too good to pass up. Retention elections now are taking on many characteristics of regular competitive elections with little or no protection for the judge who is the object of the often politically motivated attack.

A judge is targeted for removal at times because monied interests disagree with a particular opinion or a series of opinions, criticizing the judge as being “too liberal” or “soft on crime” or having “thwarted the will of the people.” The attacks also invoke the mantra of “judicial activism,” though they usually offer no specifics beyond the buzzword. And spending on judicial retention elections has reached disturbingly high levels, with cumulative spending in four states — Alaska, Colorado, Illinois, and Iowa — in 2009-10 of nearly $4.9 million.12

Backed by big money, these charges tend to raise the stakes in the contests, leading the judge to have to decide whether to mount a campaign to counter the attacks. But because merit retention elections were never intended to be a political fight, laws regulating other campaigns or even codes of judicial conduct place judges at a distinct disadvantage.

For example, unlike a competitive judicial election where an opponent must qualify by the filing deadline months before the election, judges up for merit retention may face last-minute attacks designed to encourage the public to vote “no.” This occurred as recently as in 2014 in Kansas and dates back to at least 1996 in Tennessee, when Justice Penny White was ousted based on a ruling that upheld a rape and murder conviction but overturned a death sentence on legal grounds.13

Even when the attacks are unsuccessful, opponents often see this as an effective message that judges who render unpopular decisions do so at their own peril. Ignoring the unique role judges play in our democracy, the attacks call the judge an unelected politician in a black robe and urge voters to assess whether the judge’s decisions ignore public opinion.

Judicial retention elections, by contrast with other elections, including contested judicial elections, are often misunderstood by voters who question why the judge is on the ballot and how to assess the judge’s performance. Unfortunately, repeated negative attacks may make up much of the information available to voters, and attack ads are a demonstrated “mobilizing force,” spurring increased voter participation in state court elections.14 The 2010 merit retention election in Iowa provides a particularly dire example.

The 2010 Iowa Merit Retention Election
In 2010, Iowa voters startled the country by ousting three sitting state supreme court justices based solely on a campaign that attacked the justices for a single opinion. Special interest groups spent almost $1 million to remove the justices from office. Iowans supporting the removal of the justices were upset by a unanimous 2009 Iowa Supreme Court ruling overturning the state’s prohibition on same-sex marriage.15

A television ad sponsored by Iowa for Freedom, the National Organization for Marriage, and the Campaign for Working Families opened with the narrator intoning, “Some in the ruling class say it is wrong for voters to hold supreme court judges accountable for their decisions.”16 Showing images of parents, Boy Scouts, hunters, and flag-saluting children, the ad condemned the same-sex marriage decision. The narrator begged voters to “hold activist judges accountable, flip your ballot over and vote no on retention of supreme court justices.” Buzzwords in the ads included phrases such as “ignoring the will of the people,” “legislating from the bench,” “liberal,” and “out of control.” In the election, the Iowa justices chose to stay above the political fray. They did not answer the attacks, fundraise, or wage active campaigns, fearing those actions would serve only to politicize the retention election. According to one researcher, the justices could have received a five-percentage increase in votes had they campaigned, which would have made the election close.17

Exit polling showed that 57 percent of Iowa voters opposed same-sex marriage at that time. One of the leaders of the ouster campaign called the vote, “a strong message for freedom to the Iowa Supreme Court and to the entire nation that activist judges who seek to write their own law won’t be tolerated any longer.”18

Two years later, another Iowa justice who participated in the same-sex marriage decision faced a similar attack when on the ballot for merit retention. Louisiana Governor Bobby Jindal and Rick Santorum, the winner of the 2012 Republican presidential caucuses in Iowa, joined a 17-city bus tour campaigning against the justice. Like the three justices defeated in 2010, this justice did not run an active campaign. By February 2012, 56 percent of Iowans opposed passing a constitutional amendment banning same-sex marriage.19 Amid the shifting winds of public opinion, the justice survived retention in 2012 by receiving 54 percent of the vote.20

In other words, the only change between the opposition in the Iowa merit retention elections in 2010 and 2012 was public opinion and not the legal merits of the court’s same-sex marriage decision. Indeed it is ironic that by 2015, the U.S. Supreme Court held bans on same-sex marriages were unconstitutional.21 Yet, unlike state court judges, federal judges are protected by lifetime tenure.

Similar campaigns have been mounted in several other states including Florida, Tennessee, and Kansas with varying outcomes.22 Such events demonstrate the critical importance of educating the public about the role of the courts, judicial decisionmaking, and judicial selection processes.

Keeping Politics Out of the Courts
Although fundamental to our democracy, fair and free courts have no natural constituencies. Even when voters agree that courts must be fair and impartial, they are often swayed by the rhetoric of the attacks. As the previous examples demonstrate, the political genie is out of the bottle. Future retention elections are increasingly less likely to focus simply on a judge’s fitness or competence — the original purpose of merit retention.

Judges do not possess the tools to mount an effective defense. Usually, judges are heard only in court or in their written decisions, and properly so. These are the conventions within which they operate. Those who lob political attacks at judges exploit this. If a judge publicly responds to the attack or explains the law that required the result in a case, the judge risks the danger of becoming an active participant in the political process. If a judge does not respond, some may believe that the criticism is valid.

In an era when politicians and special interests are often stepping to the microphone and criticizing courts for being out-of-step with the march of voters, courts need advocates who will educate the public about the real workings of the law and courts’ role in our democracy. The public needs continuous reminders that a judge’s role is fundamentally different from the role of legislative and executive branches.

These attacks would be improper regardless of which political party or special interest group was behind them. But, especially in light of the inherent impediments judges face in their ability to effectively communicate with the public, there is a real risk that judges will fear removal from office for rendering a decision that is legally sound but politically unpopular. This trend, thus, has the danger of negatively affecting a basic tenet of our democracy.

Informed Voters — Fair Judges
The National Association of Women Judges is doing its part to address this problem. Its Informed Voters — Fair Judges project is a nonpartisan national effort to educate the public before the election cycle begins about the role and importance of fair and impartial courts in our democracy. On the project website,, are alerts, presentations, talking points, radio and television public service announcements, state-specific information, and a five-minute film produced by the Discovery Channel and narrated by retired U.S. Supreme Court Justice Sandra Day O’Connor, who remarks during the film that:

Americans look to their courts for fairness because they trust the judge will handle their case with an even hand, free from the influence of politics and partisanship. Judges who don’t represent one group or party versus another, judges who don’t bend the rules, judges who stand for one thing and only one thing — fairness. Because doing what’s right is not based on the poll numbers.23

The Informed Voters Project website is an excellent resource for a fair courts service project, such as a presentation to civic groups and schools, including community colleges, or a Law Day or Constitution Day talk.

Other work must be done by all those who care about a fair and impartial judiciary to:

1) Emphasize that the merit selection and retention system was designed to minimize the influence of politics in the process of selecting judges and has been lauded as an improvement over judicial elections that are contested between two opposing candidates. While some states even have judicial elections where the candidates run as partisans, merit selection and retention were designed to be nonpartisan.

2) Emphasize that in most state courts, unlike the federal courts, judges are not appointed for life, and the federal model was designed to provide for a judiciary free from partisan political interest. The merit selection and retention system is intended to honor the concerns flowing from judges being forced to run in partisan elections.

3) Emphasize that in a merit selection system, judges are selected based on their merit and hopefully not on partisan politics. The role of a nonpartisan judicial nominating commission is to select the most qualified candidates who apply and send those names to the governor.

4) Emphasize that in merit selection states, there is still an opportunity for the voters to decide whether the judge should remain in office and that is by putting the judge’s name on the ballot at the end of each term to ask whether the judge should be retained. The retention vote was intended by those who advanced a nonpartisan, apolitical process to be closest to the federal system.

We must have a real dialogue about other solutions, not just in states with merit selection and retention systems but in all state court systems where judges are vulnerable to these types of political attacks:

1) Consideration of genuine campaign finance reform for judicial elections, including limitations on amounts of outside spending; identification of third-party donors; time deadlines for opposition spending prior to retention elections; and public financing, and whether these reforms could survive First Amendment challenges based on the compelling governmental interest in preserving a fair and impartial judicial system. Distancing the judicial branch from Citizens United may be a more persuasive argument after the U.S. Supreme Court decision in Williams-Yulee.

2) Consideration of longer terms for state supreme court justices with periodic evaluation of the justices’ performance by a nonpartisan, independent judicial evaluation commission and objective evaluations by other groups, such as the American Bar Association and ABOTA.

3) Consideration of eliminating merit retention elections altogether so that justices are appointed through merit selection and serve until their retirement (in most states age 70) and are held accountable through the separately constitutionally authorized Judicial Qualifications Commission, which is charged with disciplining judges.

4) Consideration of an independent and nonpartisan (and national) system for protecting judges who are attacked based on politics that would constitute a consortium of groups dedicated to a fair and impartial judiciary.

Justice Sandra Day O’Connor eloquently stated the importance of the role of judges in our democracy: “The founders realized that there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country that place is supposed to be the courtroom.”24

As lawyers, every member of The Florida Bar understands this fundamental tenet.

I hope you will join me in communicating these important messages to family, friends, and neighbors who are not legal professionals and are not as familiar with the importance of a fair and impartial judiciary.

The essential goal of preserving fair and impartial courts needs advocates who will educate the public about the role of the courts in our democracy and fight back with effective messages when court decisions are attacked for political gain. If the legal profession does not fill this leadership role, who will?

1 The Florida Bar, Fair & Impartial Courts (Nov. 16, 2015),!OpenDocument.

2 Justice at Stake, Brennan Center for Justice at New York Univ. School of Law, and National Institute on Money in State Politics, Bankrolling the Bench: The New Politics of Judicial Elections 2013-14 at 22 (2015), available at

3 Press Release, Brennan Center for Justice at New York Univ. School of Law, and Justice at Stake, New Poll: Vast Majority of Voters Fear Campaign Cash Skews Judges’ Decisions (Oct. 29, 2013), available at

4 The Brennan Center for Justice has reported on this disturbing trend that began to skyrocket in 2010. See Adam Skaggs, Maria da Silva, Linda Casey & Charles Hall, Brennan Center for Justice, New Politics of Judicial Elections, 2009-10 (Charles Hall, ed. 2011), available at Subsequently, spending in judicial elections has been documented each year in a series of publications put out annually by the organization, Justice at Stake.
5 Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1662 (2015).

6 Id. at 1675 (Ginsburg, J., concurring in part and concurring in the judgment).

7 L. Jay Jackson, Legislators and Special Interests Are Making Sure We Get the State Court Judges They Want, A.B.A. J. (July 1, 2013), available at (legal observers “say the judiciary is under attack as never before, jeopardizing the American tradition of impartial jurisprudence”).

8 See, e.g., Last Week Tonight John Oliver, Last Week Tonight with John Oliver: Elected Judges (HBO), YouTube (Feb. 23, 2015),

9 See Scott G. Hawkins, Perspective on Judicial Merit Retention in Florida, 64 Fla. L. Rev. 1421, 1422 n.4 (2012) (citing, among other studies, focus group research conducted on behalf of The Florida Bar).

10 See Clinton Nominates Ginsburg to Supreme Court, Cong. Q. Wkly. Rep. at 1599-1600(June 19, 1993) (setting forth Justice Ruth Bader Ginsburg’s comments upon her nomination to the U.S. Supreme Court, including her quotation to Chief Justice Rehnquist’s famous words).

11 Marsha Ternus, A Judge’s Perspective on Current Threats to a Fair & Impartial Judiciary at the National Constitution Center (June 9, 2014).

12 Skaggs et al., New Politics of Judicial Elections, 2009-10 at 7 (Charles Hall, ed. 2011), available at

13 See Colman McCarthy, Injustice Claims a Tennessee Judge, Wash. Post, Nov. 26, 1996, at C11.

14 Melinda Gann Hall & Chris W. Bonneau, Attack Advertising, the White Decision, and Voter Participation in State Supreme Court Elections, 66 Political Science Q. 115, 119 (2013).

15 See Grant Schulte, Iowans Dismiss Three Justices, Des Moines Reg., Nov. 3, 2010, available at

16 Nation for Marriage, NOM:Iowans for Freedom against Radical Judges: David A. Baker, Michael J. Streit, Marsha Ternus, YouTube (Oct. 19, 2010),

17 Mark Curriden, Judging the Judges: Landmark Iowa Elections Send Tremor Through the Judicial Retention System, A.B.A. J. (Jan. 1, 2011), available at

18 Bert Brandenburg, Beating Back the War on Judges: Voters Rejected the Crusade to Politicize the Courts, Slate (Nov. 12, 2012),

19 William Petroski, Iowa Poll: Majority Opposes Ban on Same-Sex Marriage, Des Moines Reg., Feb. 26, 2012, available at

20 Lauren Coffey, Iowa Supreme Court Justice Retention Sparks Discussion, The Daily Iowan, Nov. 8, 2012, available at

21 Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Prior to the Supreme Court’s decision, federal courts across the country had also ruled that bans on same-sex marriage were unconstitutional. Of course, these rulings were not without their detractors. The Idaho House of Representatives, for example, voted 44-25 on March 20, 2015, to approve a nonbinding resolution urging Congress to impeach all federal judges who rule in favor of same-sex marriage. See Betsy Z. Russell, Idaho House Wants Judges Who Rule for Gay Marriage Impeached, The Spokesman-Review, Mar. 20, 2015, available at

22 Erik Eckholm, Outraged by Kansas Justices’ Rulings, G.O.P. Seeks to Reshape Court, N.Y. Times, April 1, 2016, available at

23 Sandra Day O’Connor, Fair and Free, YouTube (Feb. 3, 2014),

24 Sandra Day O’Connor, Remark, Choosing (and Recusing) Our State Court Justices Wisely, 99 Geo. L. J. 151, 152 (2010), available at

Justice Barbara J. Pariente has been a justice on the Florida Supreme Court since 1998 and served as its chief justice from 2004-2006. Before her appointment to the Supreme Court, she served as an appellate court judge. In private practice for 18 years, she was a civil trial lawyer. She has been on the ballot for merit retention four times, with the last election in 2012, where she and two other colleagues faced politically motivated attacks. She thanks Matthew Christ, staff attorney, for his assistance.

F. James Robinson, Jr., is a senior partner in the Wichita, Kansas, law firm Hite, Fanning & Honeyman, L.L.P. He represents clients in contract, intellectual property, products liability defense, and other business litigation.

This article is reprinted with permission of the American Board of Trial Advocates and was edited to accommodate the publication guidelines of The Florida Bar Journal.

[Revised: 04-26-2016]