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2 options better than ballot's 1 for judge selection

By HOWARD TROXLER

© St. Petersburg Times, published November 6, 2000


You will be asked in Tuesday's election to give up your power to elect local, trial-level judges in Florida.

You will be asked to do this in two separate measures: Amendment 2, which covers circuit court judges, and Amendment 3, which covers county court judges.

If these amendments pass, then all local judges would be screened by a nominating committee, and then chosen by the governor.

If these amendments pass, no judge could ever be challenged at the ballot box. Every six years, voters would simply vote "yes" or "no" on giving that judge a new term.

This system of "merit selection" and "merit retention" is what we now use for our higher judges, on the Florida Supreme Court and our appeals courts. But until now, we have stuck to elections for our local, trial-level judges.

Many good, smart people support these two amendments. They sincerely believe that getting rid of elected judges will give us a better crop of judges.

They say that electing judges is too political. Candidates have to beg lawyers for money and support -- then they preside over those same lawyers' cases. Elected judges get in ethical trouble more often than appointed judges. Besides, because of limits on what candidates can say, voters don't really know much about them in the first place.

Let's admit all these arguments.

However, the alternative we are being asked to swallow -- having only appointed judges -- is just as bad. To me, the "translation" of the language on the ballot says:

* * *

Should the people give up all their power, so that committees of lawyers, insiders and politicians will choose all trial judges in Florida?

* * *

The way it works now, we actually use both methods. Local judges are elected. But when a judge retires or resigns early, the governor appoints a replacement. That happens a lot. Just over half our sitting judges first got their job by appointment.

So our choice Tuesday is not "elected" versus "appointed." The actual choice we face is between having two methods, or giving up one of them up.

Any claim that merit selection takes the "politics" out of the judiciary is ridiculous. It just shifts the politics from the ballot box into secret meeting rooms.

We have already seen an aborted plan by Gov. Jeb Bush's underlings to choose only "ideologically compatible" judges, no matter how qualified. A recent scandal involved a screening committee in North Florida, which poked into an applicant's divorce file trying to dig up dirt.

Election is a guaranteed remedy to the seedy politics of appointment. A contender who is blackballed by the local Bar, or who is not of the governor's party, can take his case directly to the people. Conversely, a qualified lawyer who is unwilling or unsuited for the ballot box can seek a seat by appointment.

Two methods. Each offers a way around the other's flaws.

Most of the debate has been on the "selection" part of these amendments. But the "retention" part is just as troubling. The cold fact is, we have used retention elections for our appeals judges for a quarter-century, and no judge has ever been removed.

As little information as the voters have in a contested election, they have even less in deciding whether a judge should be retained. Merit retention is lifetime appointment. This might be a good thing for a U.S. district judge. It is not at all a good thing in traffic court.

The fact is, there is no perfect way to choose a judge. Both our existing methods, election and appointment, are flawed. However, each method provides somewhat of a way to escape the other's limits. Giving up one of them, and turning over total control to committees and politicians, hardly seems like a "reform."

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