Judicial Election v. Merit Selection

The Florida Bar News
October 5th, 1999

By Dennis G. Kainen

Special to the News

“In Philadelphia, Mrs. Paul asked Dr. Franklin, ‘Well, Doctor, what have we got — a republic or a monarchy?’ ‘A republic,’ replied the Doctor, ‘if you can keep it.'”

Recorded by James McHenry,
September 18, 1787.

As educated and informed citizens we lawyers have been trying to keep this republic since our country consisted of 13 states and Benjamin Franklin was the conscience of our nation. Our duty to uphold the law in our courts includes a responsibility to inform the public about these very courts. What good is a constitution if we do not zealously strive to guard it and if our judges do not protect it? An excellent judiciary is not simply a convenience. It is one of the ways we keep our republic.

When Miami-Dade County’s legal community was small, most practitioners knew each other. Lawyers also knew their judges. The numbers no longer permit this. There will be as of this January 1 some 112 judges on our county and circuit benches. From there being one lawyer in Miami in 1896, Frank Shutts, who was Henry Flagler’s lawyer, there are now over 10,000 lawyers in our county of over 2,000,000 residents. There are condominiums in Aventura with more apartment units than there were residents in Miami when this century was young. No longer do we all know each other. I do not even know all the lawyers that work on my floor in what is a mid-size downtown office building. If we as lawyers no longer know each other then how can we expect the non lawyers to know us well enough to elect some of us as trial judges?

Many believe that a trial court system with judges nominated by a blue-ribbon committee produces a better judiciary than an elected one. Because of the work of the Constitution Revision Commission, citizens of Miami-Dade County in the fall of 2000 will be given the opportunity to decide whether they believe that we should change the current system and select trial judges on the basis of their merit and qualifications as opposed to electing them.

Under our current state system, a lawyer generally becomes a trial judge by running for election unless there is a judicial vacancy between elections. If there is such an opening, which may mean a judge has retired or the legislature has given this circuit a new seat, then lawyers are nominated to the Governor of Florida by a judicial nominating commission, or JNC. The JNC. is comprised of nine individuals who serve staggered four-year terms. Of the nine individuals, three are appointed by The Florida Bar Board of Governors, three are appointed by the Governor and three lay persons are appointed by the other JNC members.

Generally, after review of a very comprehensive application, which includes a listing of the applicant’s most significant cases, educational background, law and non-law related work experience, financial history, and other such crucial information, the JNC in this circuit usually interviews the applicants. After such interviews and the obtaining of an applicant’s criminal and traffic history as well as a further investigation of the applicant, the JNC must submit three to six nominees for consideration by the Governor. The Governor must then pick one of these nominees for the vacant judicial seat. The interview and nomination process is grueling, exhaustive, and comprehensive. I have an understanding of this process because I completed a four-year term on this circuit’s JNC on June 30.

On the other hand, the election process understandably does not permit judicial candidates to state their opinions on how they would apply the law given a certain set of facts. A candidate’s ability to successfully wage a judicial campaign all too often turns on the amount of money a candidate has raised and the candidate’s ability to hire the “right” consultants. It was reported that last year more than $5,000,000 was contributed and loaned to judicial campaigns in Miami-Dade County. Money and not merit is the grease that courses through judicial election campaigns. Another problem with judicial elections is that name recognition and the perceived ethnic origin of a name may unfortunately be the difference between winning and losing.

The lawyers of the Dade County Bar Association have always believed in the importance of an independent and excellent judiciary. We have strived to have a great bench. Our bar association has conducted a judicial poll in one form or another since 1940. The purpose of this poll continues to be a tabulation of what lawyers in this county think about the members of our bench and hopefully to provide these judges with feedback to assist them in improving. Continuing this leadership role, the DCBA has spent many months thoughtfully reviewing and studying this issue. This consideration commenced under the leadership of our prior president, Benedict Kuehne, with a series of guests addressing our board in a very scholarly and studied manner.

On July 24, at our annual retreat, members of our board and chairs of our committees listened to and participated in a fascinating and passionate debate on this vital issue. Members of our bench and bar continued the discussion of earlier board meetings. They further illuminated us on the advantages and shortfalls of both judicial elections and the merit selection/retention process. At our retreat, there were esteemed representatives of other local bar associations, trial judges and appellate judges, and a former and current chair of our JNC. After these presentations and after continued debate our board took a vote and endorsed a change to a merit selection/retention system for our circuit.

Though the vote was close (it passed by one vote) I believe our board made the correct decision. I believe that a merit system results in a better judiciary. With such a system, individuals will be selected on the basis of their qualifications and not based on their name. No longer will we as lawyers have to battle the perception by many of our clients that a lawyer’s campaign contributions will improve their chances of winning their case. No longer will an incumbent judge be able to scare away opponents and be reelected without opposition based on the size of his or her war chest. Every member of the judiciary will stand and be either retained or ousted by the voters at the end of each term.

Under the new system, a JNC will continue to thoroughly delve into the qualifications and background of a candidate. This is a more substantive manner in which to have a great judiciary than a candidate’s normal manner of campaigning.

I treasure our country’s election process. Our citizens’ right to vote is normally sacrosanct. Yet the judiciary is different. As many experts have stated, the selection of a member of the judiciary is different than the election of members of the legislative and executive branches of government. Judges are not supposed to do what is politically expedient or what is simply popular. We entrust our fortunes and our lives to these men and women who must rule without political bias and who are mandated to follow the law.

In having such a system in place we will be following the collective experience and judgment of the 34 states that have already adopted merit selection. We also will ensure that our community continues to have a more diverse court which is better obtained through this merit system.

Yet there is a potential danger to the beauty of the merit system which is lurking in Tallahassee. The way this system is now comprised, there is a gentle balance — which is working. Our JNC continues to give us excellent judges. Nevertheless, the state legislature has toyed, at different times, with creating a destructive mutation of the JNC. Some ideas have included: taking away the Florida Bar’s appointments to the JNC — after all, what would lawyers know about the selection of good judges? or simply abruptly ending the terms of the three JNC members appointed by the Governor every time there is a new Governor. That would certainly be a good way to perpetuate in Florida a corrosive Jacksonian spoils system.

Notwithstanding any potential interference with the composition of the JNC, the DCBA endorses a merit selection/retention system. As long as the balance remains, it is a better system. With merit selection/retention I believe we will follow Benjamin Franklin’s example. We will help keep our republic by ensuring that those that judge us are this community’s best and brightest.

Dennis G. Kainen is president of the Dade County Bar Association. This article was reprinted with permission from the Dade Bar Bulletin. While the Bar now has no position on local option merit selection of trial judges, President Edith Osman has appointed a study committee to frame the issues for the Board of Governors, and perhaps make recommendations. The committee is sponsoring this series, as well as holding public hearings in an effort to both educate Bar members on the issues and receive members’ comments.