Florida Voters to Decide Judicial Selection

New York Times
October 25, 2000


In a year when aggressive judicial politicking has drawn calls for reform in many states, Florida voters will decide whether to end political campaigns for trial courts in favor of an appointive system.

But the campaign for what supporters call ”merit selection” of trial judges has run into political roadblocks here, including the tangled ethnic politics of Miami. The opposition to two referendums on the ballot in November has surprised supporters and raised questions about the feasibility of calls for appointive systems nationally.

The fate of the proposals here is being watched carefully across the country by supporters of appointive systems, which have been adopted as reforms in many states since the 1940’s. But in recent years the national momentum toward appointive systems has slowed, despite growing concerns about increasingly politicized judicial races.

The vote here ”will test the continuing viability of merit selection as a political proposition and as an institution of government,” said Seth S. Andersen, director of the Hunter Center for Judicial Selection at the American Judicature Society in Chicago, which works to limit political influence over judicial selection.

Since 1976 Florida appeals judges have been appointed by the governor after nomination by a nine-member commission that reviews candidates’ qualifications. But trial judges here are elected in expensive and sometimes nasty campaigns that critics say leave judges owing political debts.

In the Florida system, the appointed appeals judges face voters in periodic retention elections, in which they can be returned to office or lose their positions.

The current proposals would permit voters in each judicial district to decide whether to use that system for trial judges or continue to select them at the ballot box.

Some supporters of the proposals say the difficulties of their campaign show that systems of electing judges can draw deep support, including, they say, among people who believe they can influence the courts with political contributions.

”We initially had gotten incredible signs of support among lawyers who thought the status quo was unacceptable,” said Keith Donner, campaign manager of the committee supporting the proposed changes, Citizens for Judicial Integrity.

”But,” Mr. Donner continued, ”when it came time to write checks, it became painfully clear that those people like the current system and they like writing checks to judges.”

In Miami, the supporters have raised only about $30,000, far less than would be necessary to mount a credible campaign for complicated proposals that have been vastly overshadowed in this year’s battle over Florida’s presidential vote.

In addition, some liberals across the state who have pressed for an appointive system for decades have been unenthusiastic about the measure this year because it would give Gov. Jeb Bush and his Republican allies added control over the judiciary.

Most important, however, the proposals have drawn strong opposition from, among others, groups representing Cuban-American, black and female lawyers.

They say the ostensible reform is really a move by the legal establishment to deprive citizens of their vote and to close the doors to candidates who are not part of the system.

”The knee-jerk reaction is that this is about cleaning up the judiciary,” said Victor M. Diaz Jr., vice president of the Cuban-American Bar Association who is leading the campaign against the measures.

”It is not about that. It is about the judicial establishment that feels threatened by the changing political dynamics and demographics of this community, and this is an effort to protect themselves from these changes.”

In Florida, as in many states, a campaign for county trial judge can cost $200,000 or more. The fund-raising raises ethical issues, said Dennis G. Kainen, a Miami lawyer who is chairman of Citizens for Judicial Integrity.

”You don’t want to be the law firm that didn’t give to a certain judge, when the opposition law firm did give,” Mr. Kainen said. He said it was a myth that voters had power under the current system. Political contributors and consultants effectively select judges in Miami because a powerful consultant on the payroll often discourages an election challenge from another candidate.

Opponents have pointed to what they say are abuses in some of the judicial nominating commissions. For several weeks, a commission in northern Florida has been under fire because some of its members asked conservative candidates questions like whether they had sexually transmitted diseases, in an apparent effort to find grounds for disqualification.

Mr. Diaz, whose group is Citizens for an Open Judiciary, said the questions about the commissions showed that the appointive system was as political as any election.

In a more emotional appeal, Mr. Diaz often speaks of his appreciation as a Cuban-American of the right to vote. At one point during the campaign he equated the appointment proposals to socialism, which opponents said was a way of signaling Cuban voters that the proposals threatened their growing political power.

Mr. Diaz now says the reference to socialism was ”an unfortunate choice of words.”

Mr. Kainen, who is the former president of the Dade County Bar Association, said he was particularly disappointed that lawyers who had complained regularly about the current system were slow in offering support for measures aimed at getting better judges. ”I thought,” he said, ”people would be more enthusiastic about something they’ve been talking about for years.”