Tampabay: Merit based judge selection didn't fly with voters

There was no need for a recount. Each of Florida's 20 judicial circuits, and each of its 67 counties, defeated the idea of appointing all judges by a typical majority of 60 to 80 percent.

It was a defeat for the Florida Bar, and those reformers who wanted all judges appointed by "merit selection" and awarded new terms in yes-or-no "merit retention" elections.

Trial judgeships in Florida will continue to be elected, non-partisan positions. At the end of each six-year term, judges still can be challenged by rival candidates. The governor will keep appointing judges only when a vacancy occurs in the middle of a term.

The voters did the right thing.

Amendment 2 and Amendment 3 took all power away from the people, and virtually guaranteed lifetime appointment to judges. We already use "merit retention" elections for appeals judges in Florida, but none has ever been defeated.

Even if only a few elected trial judges are challenged under the current system, at least they can be challenged, and a sitting judge is even kicked out of office now and then.

If the Bar and the reform types are interested, here are some suggestions for how they might have better luck next time.

Any system of "merit selection" and "merit retention" -- in which voters say only "yes" or "no" on another term -- should be, at a minimum:

(1) Entirely public, with the nominating committees made of up a broader membership than currently exists, and

(2) Designed to allow the occasional defeat of a sitting judge.

Both of these points are deal-breakers. The Bar dislikes the idea of public deliberation over who should become a judge. The screening committees now are appointed by the Bar and the governor, and those select few then choose the remainder of the members. The deliberations are secret.

Neither is the Bar crazy about the idea of a judge actually being defeated. The voters might technically have the right to vote "no," but any attempt actually to do so is condemned as "interference" with the judiciary.

Merit retention, as it was presented on the Florida ballot, was a pig in a poke. Voters would have had no information, zero, on which to base their decision -- just as they have no information now on elections for the Florida Supreme Court, and the district courts of appeal.

Any future attempt to enact merit retention in Florida should borrow heavily from the system used in a growing number of states, especially Alaska and Arizona, to give voters information about the judges up for a new term.

The Alaska Judicial Council, an independent agency, mails information about judges directly to voters. That information includes surveys of lawyers, witnesses, jurors, staff and other judges.

It also includes the judge's record on appeal, a statement from the judge, and any public records or disciplinary actions taken against that judge. Finally, the commission votes on whether to recommend re-election or defeat for that judge. The Arizona Commission on Judicial Performance Review operates under a similar setup.

Can you imagine Florida judges operating under such a limelight? Other statistics I would include, for starters, would be how often a criminal court judge departs upward or downward from the state's sentencing guidelines, and whether a family law judge is showing an unusual preference for men or women in divorce and custody cases.

Lastly, we should somehow make sure that the possibility of defeating a sitting judge is an accepted part of the system, instead of some unthinkable barbarism. Otherwise, no matter what the label, it would be lifetime appointment. The voters will not buy it.

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