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On Nov. 7, Florida voters will be asked to give up their right to participate in the selection and retention, through general election, of state court judges. In its place, is proposed a system which: � Grandfathers in all 116 existing county and circuit court judges, who will never again have to face a contested election and are exempt from having to participate in the judicial nominating screening process to which all future judicial applicants will be subjected. � Gives the practical equivalent of life tenure to our existing judiciary, delaying the ongoing process of integrating women, minorities and younger lawyers into the ranks of our state court judiciary. � Surrenders the right to determine the future course of our entire state judiciary to a judicial nominating process that, besides being entirely secretive in its deliberative processes, has been rocked with recent scandals. The right to vote is the most basic privilege of American citizenship. This right should not be burdened — much less eliminated — unless there is no other reasonable alternative. The proposed alternative fails this test miserably! The current system that provides for both judicial elections and judicial appointments is far superior. Under the current system, 57 percent of our state court judges were appointed and 43 percent were elected. The existence of a hybrid system provides an important check and balance on the excesses of either system. Efforts to reform the current election system by implementing fair campaign practices, procedures and public financing offer less dramatic alternatives to abolishing judicial elections. At the heart of current proposals to abolish judicial elections is a basic mistrust in the public’s ability to exercise sound judgment in electing state court judges. Recent election results prove that the general public is more responsible than critics suggest in selecting among competing judicial candidates. In the 1998 judicial elections, 11 of 12 judicial candidates who rated “most qualified” in the Dade County Bar Association’s poll of lawyers won their race and every candidate who received the endorsement of the Miami Herald editorial board won election. In the September 2000 elections, women candidates won six of seven decided races, reaffirming the importance of judicial elections in addressing the under-representation of women judges. Disproving the myth that judicial elections are unusually prone to racially polarized voting, an African-American woman won countywide judicial election for the second time in recent years. Two extremely well-qualified Anglo candidates defeated Hispanic challengers, despite record Hispanic turnout. These results proved again that the current system is the single most effective means of securing a quality and diverse judiciary. Finally, a recent study conducted by professor J.P. Monroe of the University of Miami Department of Political Science confirms that there is no statistically material difference in the performance of elected vs. appointed judges in bar poll ratings. There certainly is room for further reforming and improving the current hybrid system of judicial election and appointment. The judicial nomination process needs to be made more open and accountable. We must implement public financing of judicial elections and take judges out of the business of campaign fund-raising. Likewise, we need to do a better job of educating the public regarding the qualifications of candidates for judicial office. The proposed alternative offers to replace the voice of the people with the political judgment of judicial nomination commissions composed of just nine members, six of whom are lawyers. None of the members of these commissions is elected. Currently, all are appointed either by the organized bar, the governor or by each other. However, in the last two sessions of the Legislature, proposals to further politicize the JNCs by eliminating completely the Florida Bar’s appointments in favor of appointments by the speaker of the House and Senate president have failed in committee by razor-thin margins. The proposed judicial nominating process is not constitutionally protected in Florida, as in other states. In effect, the voters in Florida are being offered what promises to be a modern Trojan horse masquerading as electoral reform, a proposal which will actually lead to an increasingly politicized judiciary! The proposed nominating commissions deliberate in private and are not accountable to anyone for their procedures or decision-making process. Recent allegations of influence peddling and insider manipulation involving the nominating commissions in Miami-Dade (federal and state appellate), Broward and Palm Beach counties are evidence of the potential for abuse. This potential for scandal is enormous due to the fact that the JNC’s are self-regulating. There are no substantial statutory conflict of interest, financial disclosure or lobbying restrictions on JNC members. Backroom, closed-door politics and political lobbying will replace public campaigning as the primary mechanism for selecting our judiciary. Simply put, the political judgment of an elite, unaccountable few will replace the collective judgment of the general public. The independence of our judiciary is a legitimate concern in any system of elected judges. Proponents of the political nomination process suggest that it will lead to a more independent judiciary. This argument flies in the face of practical realities and lessons of history. No one familiar with the political nomination process can seriously contend that the political nomination process is immune to intense partisan lobbying. By definition, the political nomination process involves appointments by elected governors after screenings by judicial panels appointed in part by the same governor. No serious student of American history, recent or past, can dispute that whenever a political nomination process has been enshrined as the sole mechanism for selecting state court judges, partisan politics has quickly captured the nominating and retention process. In fact, recent history suggests that merit retention votes have become the most common battleground for partisan litmus test challenges. The few challenges to sitting judges, mounted in states with appointed judges facing retention votes, have been organized by special interest groups. Issues like abortion rights, the death penalty and sentencing of criminal defendants have become the only rallying cries for serious challenges to appointed judges. Rather than diminishing the relevance of these litmus test issues to judicial office, the appointment and proposed retention process have magnified their importance. Advocates of the proposed constitutional revision mislead the public by suggesting that requiring appointed judges to face a retention vote at the end of each term will preserve the public’s input regarding the administration of justice. The fact is that no judge in the entire history of this state has ever lost a merit retention vote. Nationally, over 99 percent of all judges facing retention elections have been returned to office. In practice, the proposed retention votes means life tenure for all of our existing judges — effectively ending our ability to remove bad judges from the bench. Without question, the dynamic changes our community is undergoing frighten some people. Those with a vested interest in preserving the status quo are trying to abolish judicial elections in order to insulate the judiciary from having to respond to the changing nature of our community. Undoubtedly, part of this change will be greater diversity among state court judges. Without question, a diverse judiciary will be obtained faster via the current hybrid system, than under a nominating process which grandfathers in all the existing judges and gives them the practical equivalent of life tenure. Judicial election campaigns are not perfect; neither is the current judicial nominating process. Both systems have strengths and weaknesses. It is precisely for this reason that the current hybrid system works best. The case for reform of both systems is compelling. However, the current proposal to give life tenure to all existing judges and surrender the right to select our entire state court judiciary to an unregulated, secretive and increasingly politicized nominating process should be soundly rejected.

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