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
“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