Should Judges Be Elected? - 08/15/12
The answer to this question, I submit, is a resounding no! No system for appointing judges is perfect, but, ideally, only top-flight lawyers should serve on the bench and be free of political influences, which inevitably arise when judges are elected.
There are pros and cons to electing rather than appointing judges. Advocates for electing judges often cite accountability as their argument. The problem is that most voters don't have a clue as to which candidate is best qualified. I suspect that many voters skip over this part of the ballot, simply befuddled.
A case in point was my own experience yesterday when I was faced with several choices in the judicial elections. I voted for one candidate on the recommendation of a trusted colleague who actively practices in this circuit. Another name I recognized because of her involvement in local politics and I voted for her opponent for that reason. I will be the first to admit that I have no idea if the person I voted for is well-qualified. The fact is that practically any lawyer can run for judge, and be elected, regardless of his experience or competence for the bench. This is no way to select judges whose decisions can affect our lives and liberties in fundamental ways.
Judge Peter D. Webster of the First District Court of Appeal (now retired) suggested an alternative method of selecting judges in an article in the Florida State University Law Review. Judge Webster's proposal is a variation of the so-called "Missouri Plan," which entails the use of commissions to select judges based on merit.
Webster's plan calls for several nominating and retention commissions, each having nine members — one for the state supreme court, one for each district court of appeal, and one for each circuit. The chief justice would appoint a judge to serve as chair of each commission.
No more than five members of each commission would be from the same party, and five members would be non-lawyers. Three members would be appointed by the governor, three by the leader of the party opposite in the state senate, and three by the state bar.
Commissioners would serve one six-year term and would not be eligible for a judicial appointment while in office or for two years after.
When a vacancy occurs, the commission would nominate three persons, whom it would rank. The governor would appoint the judge, but if he selected other than the first-ranked nominee, he would be required to explain his reasons to the public.
Judges would be appointed to an initial two-year "probationary" term, but would be eligible for a "retention" appointment of ten years. Incidentally, under Webster's plan, open-government rules would apply to all commission proceedings.
Would it work? While no scheme is fool-proof, a commission or merit plan would be better than what we have now if the goal is well-qualified and independent judges.
I would also suggest stronger qualifications for the bench, and rules of right conduct for the members to insure that the commissions act without bias or the appearance of bias.
Conclusion: The legislature should consider an alternative method for selecting state judges. Judge Webster's proposal could serve as a starting point.
REFERENCE: Peter D. Webster, Selection and Retention of Judges: Is There One "Best" Method? 23 Fla. St. U. L. Rev. 1 (1995), law.fsu.edu.