TALLAHASSEE – Justice Barbara J. Pariente and F. James Robinson recently wrote an article for the May 2016 issue of the Florida Bar Journal that addressed how merit-based selection and retention is affected by partisan attacks.

“Each of us, as lawyers and judges, play a critical role in reminding our fellow citizens of the importance of a fair and impartial judiciary in our democracy,” the article said. 

The authors explained that phrases such as “activists,” “legislating from the bench,” “unelected,” “ignoring the will of the voters,” and “out of control” are often used by those seeking to attack judges for decisions with which they disagree.

Although there is a lot of spin when such words are used in relation to judges, the article explained that people are easily influenced by them as well.

“Unfortunately, these soundbites have the potential of resonating with the public and uniformly have the potential for a corrosive effect on our judiciary,” the article said.

The article further explained that while Florida voters overwhelmingly retained Pariente and two other judges in 2012, the experience reinforced for her the importance of the ongoing need for consistent outreach to educate the public. 

“The Florida Bar has played its part with civic education programs, such as The Vote’s In Your Court and its ongoing excellent civics education program, Benchmarks: Raising the Bar on Civic Education,” they said. “NAWJ’s Informed Voter Project is another great resource for educating the public about the role of our courts.

They also stressed that negative political attack ads and increased spending by special interest groups in political elections have started spilling over into state court retention elections, which could create loss of public trust and confidence in the fairness and impartiality of judges.

“Taking advantage of the vulnerability of state court judges who are constrained by many ethical limitations and by wise self-imposed restrictions on their public comments, some politicians and special interest groups have declared open season on judges who they claim are out-of-step with the march of public opinion,” the article said.

The article’s primary aim, as the authors explained, was to explore the increasing political attacks on state courts, particularly on how it affects merit selection and retention and how such attacks hurt the judiciary. 

They explained that merit selection and retention systems were intended to avoid political and partisan attacks.

“It was envisioned that the judge would have no basis or need to campaign to keep his or her seat,” the article said. “These elections sought to evaluate a judge based on his or her judicial performance — has the judge committed a serious ethical indiscretion or is the judge incompetent? — and not based on the popularity of a single decision or political considerations. Merit retention elections were designed to remove partisan politics and special interests from the process of choosing judges.”

More so, the article explained that merit selection and retention was created to protect judges from shifts in public opinion that can undermine the consistency and fairness in the law.

“Yet, in today’s increasingly polarized political atmosphere, some special interest groups and political figures have found the value proposition of altering the makeup of a state supreme court too good to pass up,” they said. “Retention elections now are taking on many characteristics of regular competitive elections with little or no protection for the judge who is the object of the often politically motivated attack.”

The article said that such political intrusion can upset the ability for judges to be fair and balanced, or there is backlash against judges if they are not catering to political or partisan trends.

“Americans look to their courts for fairness because they trust the judge will handle their case with an even hand, free from the influence of politics and partisanship,” they said. “Judges who don’t represent one group or party versus another, judges who don’t bend the rules, judges who stand for one thing and only one thing — fairness. Because doing what’s right is not based on the poll numbers.”

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