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A Times Editorial

Vote Yes to appoint judges

© St. Petersburg Times, published October 25, 2000

On the question of whether to appoint trial judges in Florida, the lawyers and the politicians have been waxing theoretic. One group asserts judicial independence and the other argues voter rights.

On Nov. 7, voters would be better off looking at the real world.

In state courts today, most judges are appointed. Since 1978, Florida has used a system of "merit selection" for Supreme Court justices and all district appeals court judges. Each judge is picked by the governor after a local nominating commission of lawyers and non-lawyers screens applicants and submits from three to six names for the governor to consider. In addition, any midterm vacancy or new opening for a trial judge is also filled by appointment. Slightly more than half the current trial judges -- those serving in the county or circuit courts -- were appointed.

The question before voters in all 67 counties is whether to appoint all trial judges, and despite the high-minded rhetoric on both sides, the reality is that both appointment and election have their problems. The appointment process can concentrate the power of selection into a relatively few hands and is susceptible to political patronage. Elections can result in voters choosing the best campaigner, or the one with the most donations from lawyers and not the best jurist.

Each side can point to examples of judges, appointed or elected, who don't belong on the bench. But the broader track record is revealing. Slightly fewer than half of all current trial judges were elected, but, according to research by the Florida Bar, three of every four judges disciplined in the past two years were elected; five of six judges who were removed from office or resigned with charges pending were elected. In a Dade County legal poll, 80 percent of the highest rated 20 judges were appointed and 70 percent of the lowest rated 20 judges were elected.

That record squares with common sense. The prime requisites for a judge are knowledge of the law and an even temperament. A political campaign seldom measures either. In judicial campaigns, voters are treated to handbills that tout candidates as "distinguished" and "experienced" and note their membership in the Bar as though it were something significant. The candidates are prohibited by judicial canons from talking about cases or how they would apply the law, and they are all but invisible on a campaign trail focused on the more policy-driven offices of president or governor or county commissioner. Worse, their money to run the campaigns often comes from the very lawyers who some day may be trying cases before them. No wonder a Tampa lawyer, who was barely five years out of law school, was once able to land a circuit judge seat after flying a banner over Tampa Stadium.

Opponents of merit selection attack the way judges are retained, and they have a point. Every six years, a judge's name is placed on the ballot and voters choose "yes" or "no" on whether to keep the judge. But voters seldom have enough information about whether the judges have performed well, and, in 22 years, not a single judge has been removed through retention. In this regard, though, elections are no better. Lawyers are so afraid to challenge sitting judges that few are ever challenged. Of 160 circuit judgeships up for election this year, only 17 were contested. The dirty truth is that the state's Judicial Qualifications Commission has been, and will continue to be, the best monitor for the judiciary -- no matter how the judges are selected.

We make the case for judicial appointment not on lofty theory but on real world pragmatism. A judge needs to know the law and court procedures, and a screening committee of experts is in a better position to make that call. We recommend that voters approve both local option referendum questions, for appointed circuit judges and county judges.

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