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Revisiting the Terms of Appointed Florida Appellate Judges | Martin Dyckman

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Revisiting the Terms of Appointed Florida Appellate Judges | Martin Dyckman

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Revisiting the Terms of Appointed Florida Appellate Judges
Tuesday, November 13, 2012 — Martin Dyckman

There's a lot about American government that strikes people elsewhere as strange, notably campaigns that last too long and cost too much, a lascivious obsession with the sex lives of public servants, and the 18th Century relic we call the Electoral College.

But nothing is stranger in foreign eyes than how we choose judges. Only two other nations -- Switzerland and Japan -- elect any of theirs, and Japan's Supreme Court retention elections are a formality. Here, however, Florida and 38 other states elect all or some of their judges.

And, as Florida has just seen, even the merit retention process -- in which appointed judges of the appeals courts ask for voter approval every six years -- can become bitterly politicized.

Federal judges, including the U.S. Supreme Court, are still appointed for life, as James Madison, George Washington, Alexander Hamilton and the other founders all intended. Unlike the Electoral College, this still makes sense.

What they did not intend, however, was for the U.S. Senate's "advice and consent" to become a bare-knuckles brawl whenever a Supreme Court nomination comes up. They would be horrified by so-called litmus tests and by how nominees are pressured -- never successfully -- to say how they might decide a particular issue.

"In the rest of the world," Adam Liptak wrote in The New York Times in May 2008, "the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence." He wrote of a French judge who had to endure a four-day written test merely to be accepted into a 27-month judicial training program.

The judge noted that France, after its revolution, had considered electing its judiciary but decided not to.  "People seeking re-election would not be independent," he said. "They are indeed close to the electorate, but sometimes uncomfortably so."

They shouldn't be uncomfortably close to governors or legislators either. Florida's voters upheld this principle a week ago by retaining Supreme Court Justices Fred Lewis, Barbara Pariente and Peggy Quince. It was obvious to everyone and obnoxious to most why Gov. Rick Scott, the Republican Party, and the Oklahoma billionaire Koch brothers wanted them out.

The expensive campaign against them turned out to be largely a bust. Pariente and Lewis actually polled slightly better than they did six years ago and Quince's percentage wasn't off by much. In the 39 previous retention elections, most of them uncontested, the average vote to retain was 69 percent. The percentages on Nov. 6 were 67.9 percent for Pariente, 67.5 percent for Lewis, and 67.2 percent for Quince.

So the high-profile campaigns against them accomplished little beyond attracting more than the usual interest from the news media and the voters, along with a spirited defense from public-spirited lawyers of both parties. In that respect, it was serendipitous.

But it is not a good thing for judges to need money, even when others raise it for them, to keep their jobs.

I am coming to think that it would be better to appoint Florida's appellate judges for fixed, nonrenewable terms of, say, 20 years.  They would be as independent as federal judges but they wouldn't serve for life or even, necessarily, to Florida's present mandatory retirement age of 70. They wouldn't have to worry about pleasing governors, Republican House speakers, or Oklahoma billionaires.

Since 1976, when the voters did away with the usual system of electing justices, 24 justices have served. Only two did so for 20 years or longer. Most have lasted fewer than 15, leaving for personal reasons, federal appointments, or mandatory retirement. That pattern would likely continue under 20-year fixed terms.

When I mentioned the idea to Justice Pariente early in the campaign, she expressed interest and said it would be worth pursuing.

But it should be pursued only in the context of a broad reform that would also restore Florida's judicial nominating commissions to the independence they enjoyed before 2001. Since then, governors have had the power to appoint not just three but all nine members of each commission. The fear of how Rick Scott might misuse that power to select replacements for Lewis, Pariente and Quince accounted for many votes in their favor.

If Scott is re-elected in 2014, however, he could arguably make as many as four appointments. Three -- the successors to Lewis, Pariente and Quince, who face mandatory retirement in January 2019 -- might be disputed by Scott's successor, creating yet another controversy for the court to decide. Fourteen years ago, outgoing Gov. Lawton Chiles and Gov.-elect Jeb Bush resolved just such a potential controversy by jointly agreeing to Quince's appointment.

So the court isn't out of the woods just yet.

Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He can be reached at dyckmanm@bellsouth.net.

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