The Florida Bar

Florida Bar News

  1. Home
  2. News & Events
  3. Florida Bar News
The Florida Bar News
click to print this page  click to e-mail the address for this page 
December 15, 2010

Merit Retention
I see in the November 15 News that the voters have retained all appellate jurists. Then there’s a bit in there about how “[i]n the 32-
year history of merit retention, no appellate judge or justice has ever been voted off the bench.”

Now, there are probably a lot of people out there (usually on the left side of the political spectrum) who will say, “See what a good job we do in the appointment process of our appellate judges? We select such fine legal scholars, men and women of such high moral standards, to make our appellate decisions that the voters have never rejected our judges or the process by which they are selected and appointed by the governor.”

Can we honestly say that in 32 years no appellate judge should ever have been voted out in favor of another? The fact is that voters and some of the lawyers don’t know anything about their appellate judges. Not only do they not know anything about their appellate judges, they don’t know anything about their trial judges. In fact, I like to ask questions of typical voters who are not lawyers, but are intelligent people, if they know the difference between a circuit judge and a county judge. I haven’t found anybody yet who knows about the several lines of demarcation in our justice system.

I write this missive because [First District Court of Appeal] Judge [Phil] Padovano reports that he is confused about the way people react to being upset by the current political situation. Here’s my take on it: People will vote the scoundrels out if they have some understanding of the issues involved. If they don’t have that understanding or knowledge, they will vote for the status quo. It’s really that simple.

There are three branches of government in the American political system, but since nobody knows what it means to be an American anymore, the average voter votes along lines defined by sound bytes and the content of political ads coupled with where they are personally on the financial front. Almost no one in the general population deals in any depth with the court system, but everybody feels the effects of what the legisative and executive branches do. As a result, the nonjudicial branches get a lot more attention than the judiciary does, and one big reason for that is that judicial candidates are not permitted to discuss the real issues. A rule like that only serves to benefit incumbents.

In this political environment, a growing segment of the population, those now known as the “tea party,” but formerly known as the “silent majority,” are paying attention and speaking out. They feel that government is not responsive to the will of the people, and they are right. Our government does a very good job of taking care of itself, but because we have been so apathetic and uninvolved in the political process over the last 50 years or so, a lot of people feel helpless. The only thing they can do is vote for “hope” and “change.” So the trend is to vote against incumbents (except, apparently, in places like California, Mass., and Nevada).

Because so little is known about judges in particular and how the judicial branch functions in general, all judges get voted back in. I predict, though, that in a couple of years, if things don’t turn around (and they won’t)
and as more and more people become involved in the political process, that’s going to change. You heard it here first.

Ernie Mullins

[Revised: 01-16-2018]