Attorney Alan Orantes Forst spoke for many who attended Monday nights panel discussion hosted by the Federalist Society for Law and Public Policy Studies, the nations premier fellowship for conservative and libertarian lawyers and law students.
Thank you to the Federalist Society for having a balanced panel with a diversity of opinions, an educational effort that did not cost us $300,000, he exclaimed. It may be the first time in state history that were having a discussion about this.
The forum, titled Judicial Merit Retention in Florida, was held at the Florida State University College of Law Advocacy Center, and strongly contrasted with the ostensible panel-cum-campaign stopthat took place at the law school almost two weeks ago.
The $300,000 Forst referred to is the amount the Florida Bar is spending on itseducational program that critics say amounts to little more than an extended campaign shill on behalf of three controversial Supreme Court justices: Barbara Pariente, R. Fred Lewis, and Peggy Quince. The three are accused of being left-wing activists, and are up for retention on the November ballot.
The Federalist Society panel, moderated by dean of the law school Donald J. Weidner, did not discuss the justices themselves; it debated the merits of the system by which they are appointed and retained.
Under current Florida law, state appeals court judges and Supreme Court justices are appointed by the governor, from lists of candidates submitted to him by a Judicial Nominating Commission (JNC). Each of the JNCs nine members is appointed by the governor, though four of them must be selected from lists of nominees submitted by the Board of Governors of the Florida Bar. These judges and justices serve six-year terms, at the conclusion of which voters decide whether they should be retained in office.
Two of the panelists, attorney and legal scholar Richard H. Levenstein and former state Supreme Court justice Major B. Harding, defended the retention system. Stephen J. Ware, professor of law at the University of Kansas School of Law, argued in favor of the Florida Amendment 5 reforms which would bring the state system for judicial selection more in line with the federal. University of Pittsburgh associate professor of political science Chris W. Bonneau argued Florida should democratically elect its judges.
Ware frankly conceded that judges make law, in the sense that when statutes or constitutional provisions are vague or ambiguous, and reasonable people can disagree about the best interpretation of them, judges have some discretion in interpreting those statutes and constitutions, and in doing so [they] make law.
Ware said there were a couple of models of judicial selection that were compatible with democratic values: direct popular election is one; another is the Senate-confirmation model employed by the federal government: an elected president appoints judges who must be confirmed by elected senators.
Floridas merit-retention system, Ware said, fails the basic test of democratic legitimacy, in that it makes a lawyers vote worth more than a nonlawyers vote. In a democracy, lawyers do not deserve more power than other citizens in selecting lawmakers. He suggested that Florida should change to a Senate-confirmation model of judicial appointment, saying it would safeguard both judicial independence and the democratic principle.
"Nobody turns out just to vote for the Supreme Court judges," Bonneau concluded after citing statistics to that effect. "In retention elections, you don't have a meaningful choice. You may not like the judge, but you don't know who the governor is going to appoint." He said this resulted in a relatively dramatic fall-off in voter interest in merit retention races. He said there was no evidence that popular elections result in lower-quality judiciaries than executive appointments do.
"For heaven's sake, don't go back to political party elections that created the need for the change [to merit retention] in the first place," an impassioned Harding urged attendees. He estimated that about 70 percent of jurists who face ethics charges before the state Judicial Qualifications Commission are democratically elected county and circuit court judges, and only 30 percent are appeals court appointees.
After thanking the Federalist Society for hosting the panel, Forst asked the participants whether voters should consider judges' rulings when deciding whether to retain them, or whether voters should solely consider whether they have engaged in criminal behavior (as the candidates and their supporters are insisting).
Voters under the current rules get to look at whatever the heck they want when deciding whether or not to retain a judge, replied Ware. Frankly, its paternalistic for the [justices] and the Bar to tell voters what they are or are not allowed to consider.
Asked if the Florida Bar should do more to educate voters on the merit-retention process, Ware replied with an emphatic no.
I travel around the country talking with lawyers and others about judicial selection and retention and in every state its amazing how the lawyers always say their state judges are very meritorious, he said. If youre a practicing lawyer, are you going to criticize the judges before whom you and your clients are going to appear? The last people we can look to for unbiased information on the judges is the Bar.
Levenstein and Harding responded by noting that the judicial merit polls taken by the Florida Bar are conducted anonymously. In August, the Bar mailed out its latest survey to 68,000 of the states licensed attorneys. About 12 percent of recipients responded, 90 percent of them rating Justices Pariente, Lewis, and Quince positively.
Ware suggested that attorneys have a perverse interest in maintaining a judicial selection system that favors the political interests of the state legal establishment.
"The framers [of the Constitution] were very aware of the danger of factions or, as we would now say, interest groups, he said. If a framer heard a member of the Florida Bar defending the system that gives members of the Florida Bar [special rights in selecting judges], that framer would have had no difficulty understanding what was going on.
Reach Eric Giunta at egiunta@sunshinestatenews.com or at (954) 235-9116.
