Has the Florida Merit Retention System Been Hijacked?

It is a shame that we have come to this junction, forced to consider the virtues of a merit retention system; but it appears we are moving in such a direction. Although the circumstances dictating this system’s conception were hospitable, the winds have changed and we may be entering a period where we are forced to seriously rethink aspects of the Florida merit retention process. Due to semi-tectonic shifts in the political landscape, the current assault on Florida’s Supreme Court may render our current system untenable. The merit retention system was devised to remove the intoxicating effects of money and politics on the judiciary, but they seem to be returning in full force.

On one hand, Florida’s merit retention system allows us the means to, as concluded by its creator, former Governor Reubin Askew, “help keep politics out of the courtroom and go a long way to developing fair and impartial court decisions.” The previous two options were lifetime appointments or requiring judges to mount political campaigns. The first was unpopular because judges with lifetime appointments were never held accountable to voters. The second was Florida’s previous system, which caused considerable conflicts of interest with money streaming in and politics being played by members of the bench. The current retention system allowed voters the opportunity to determine whether a justice remained qualified for the job, yet removed the possibility of a judge’s impartiality being ruined by the flow of money and politics.

On the other hand, the system that has valiantly served seven governors now seems to be falling victim to the same evils it had tried to escape. A loose collection of Tea Party-backed groups is mounting a campaign to unseat Justices Fred Lewis, Barbara Pariente, and Peggy Quince. This crusade is not a well-meaning coalition intended to educate voters on the qualifications of Supreme Court justices, but an ideological attempt to hijack the merit retention system for political motives. Many are nervously commenting that rich donors could enter the fold late in the process, infusing millions of dollars in an effort to being out voters to say “no” to the three justices because they are pegged as “activist.” This would allow Tea Party-backed Governor Rick Scott to fill the bench with like-minded justices, effectively allowing money and politics to capture the one aspect of government that must remain impartial.

So how could we fix the merit retention process to better suit our goals? One of the best options would be to educate voters (all voters, not merely those with partisan beliefs) on the merit retention process, the standards that judges should be held to, and what would necessitate a “no” vote on merit retention. There are certainly non-partisan ways to educate the voting-age population of a state. For example, in 1988 Colorado created performance evaluation commissions (populated by lawyers, law enforcement officers, jurors, and other citizens) to assess judicial performance and release this information to the public. The Florida Bar has taken up this lead in this merit retention race, seeking to educate voters on the process and the benchmarks each judge should be held to. In order to educate voters, Florida could expand the Bar’s own Judicial Evaluation Committee, or choose to create an entirely different program as Colorado did.

These kinds of informative campaigns are in direct contrast to movements like Reform 2012, which exhibit strict political motives under the thin veil of voter education. With amorphous groups of people campaigning against Supreme Court justices, money and politics are just re-entering the judicial system that shunned them over 30 years ago. If hyper-partisan factions are going to try to hijack Florida’s merit retention process through misinformation, we must take it back through information.

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