When former Florida Governor Reuben Askew implemented our judicial merit-retention system in 1978, it was a pragmatic solution rooted in the politics of the day. But more than three decades later, we must take a look at the process and ask whether it is benefiting the judicial system, or politicizing the bench in a manner that threatens its credibility and function.



The current system has allowed voters to decide every six years at the ballot box whether to retain Florida Supreme Court justices, as well as those on the appellate bench. If they get more negative votes than affirmative ones, the governor can appoint a replacement. But the retention questions for judges have the lowest voter participation numbers on the ballot, mostly because voters don't understand the system or don't know know the justices.



Currently, there is a campaign co-sponsored by the Florida Bar and several other groups including the League of Women Voters to educate voters on retention elections. Askew himself is even on board in helping to spread the message. But with all of the ballot referendums for constitutional amendments, and the large slate of offices that come with a presidential election year, it seems likely that the vast majority of voters will continue to enter the booth armed with very little knowledge of each judge or justice's career – and certainly not enough to cast an informed vote on whether they should remain on the bench.



Conventional wisdom might suggest that's not a terrible thing. If only those who did have an informed opinion of the candidates participated, perhaps you'd still have a relatively democratic outcome. However, the big difference in modern politics from 1978 is simple – money. It's fairly certain that appellate judges not having to campaign against competitors is a good thing. But if the burden has shifted to campaigning to defend themselves against special interests, we have likely ended up with something worse.



If the substitute for the rare voter with a solid understanding of each judge's career is a voter who relies on third-party groups to vet such candidates and decide if they share some ideological views with its members, then a well-resourced lobbying group could grossly impact outcomes by financing an attack ad campaign and then lobbying for a replacement that their clients find more acceptable. How hard would it be for groups to raise money from special interests who have disagreed with an order or opinion a particular judge has issued, and then endorse a negative retention vote in their election guide or tar them with accusations of a particular ideological bent, or a habit of “legislating from the bench?” 



This year, three Florida Supreme Court Justices are up for “retention” votes. Combined, they have raised over $500,000 already, to campaign against well-financed groups targeting them for a negative vote. Surely, the intent of the system was not to politicize the bench so deeply as to warrant such prolific fundraising, bringing with it an unthinkable list of potential conflicts of interest, as the likelihood of donors that will have some sort of interest in an issue they later hear only grows with each additional dollar. But so long as unlimited soft-money corrupts the political system, judicial appointments subject to ballot-box reaffirmation will swim in the same murky waters as other public offices.



The vast power and influence associated with the bench certainly makes it tempting to attach remedies for voter-sponsored corrective action. I, like many Americans, would welcome the opportunity to vote down a U.S. Supreme Court Justice who I did not feel was doing a good job of upholding the constitution. But I wouldn't welcome that remedy were it to come with dozens of big-money super PAC's spending a hundred million dollars attempting to influence the outcome based on a single issue or interest, or judges that were forced to consider such ramifications each time they ruled. Having lawmakers who so clearly operate in that fashion is proof positive that this is not the way to go if a democratic outcome is to be reached. If Florida is to effectively maintain its judicial merit retention system, it must not only address the uninformed voter, but the corrupting nature of big-money politics.
 
Dennis Maley is a featured columnist and editor for The Bradenton Times. He can be reached at [email protected].