By A. J. Barranco
Special to the News

The politics of merit selection: The choice of a merit selection system for picking trial judge has more flaws than the present elective process. Proponents of merit retention argue that it removes politics from the selection of judges. This is totally false. Merit retention is actually more a system of political selection, since new judges are picked by the Governor.

Merit selection concentrates political power in the hands of large law firms, political contributors to the Governor and the media — all of whom have significant influence on a Governor. Politics is not eliminated — it's concentrated. Merit retention is an elitist proposal which allows a small handful of lawyers to decide for our community who shall be our judges.

Upon the occurrence of judicial vacancy, a nominating commission (often primarily lawyers) deliberates behind closed doors. The members choose a list of lawyers to be submitted to the Governor. No public record of their vote is kept. Lobbying begins at the commission level and moves to the Governor's office. The political lobbying processes associated with judicial appointments take place outside the sunshine. All of this is contrary to our basic notion of government being conducted in full public view.

Minorities and women have been quite under-represented in recent appellate appointments made under just such a merit selection/retention system. For those who would like to see more minorities and women on the bench, such groups will have little chance competing in such a politically-charged system. This system does not breed "better" jurists, only more "politically-connected" ones. Governors will always have their own agenda in picking judicial candidates, and merit will likely not be the first criterion on the list.

Ignorance of the public: The most troublesome aspect of any switch to a merit selection/retention system is that it is premised upon the notion that the public is too ignorant and uninformed to be selecting judges. Does this make any sense? Why should the public be trusted with the responsibilities of picking the legislature, but not the judiciary? Is there more room for error in picking representatives than judges? There seems to me to be little rational basis for making such a distinction. If the public is qualified to select the Governor, than it is certainly qualified to pick a circuit or a county court judge.

Proponents of the merit retention system believe that judicial selection decision should be taken out of the hands of the public, and put in the hands of an elitist group who "know what's best for the public." The public is thus deprived of full meaningful participation in the democratic process.

As long as the public is educated about judicial campaigns and candidates, one must respect the public's ability to choose, and the public must not be stripped of its right to vote. It is the responsibility of the organized bar and the media to inform the public about the legal qualifications of competing judicial candidates. This way, better judges will be elected without resorting to an elitist system of political appointments.

Independence of the judiciary: The thesis behind merit selection seems to be that the selection of judges should be removed from the vagaries of politics because, for example, judges who have to rule in an important case might be afraid of angering their constituents. But, proponents of merit selection/retention ignore the simple fact that a system which forces judges to stand for retention by election subjects such judges to the same political pressures as popularly-elected judges. The only real difference is that judges who are appointed by merit selection do not have to get elected in the first place, they just have to stay elected to keep their jobs. The difference seems a shallow one to me.

As Tallahassee lawyer Ken Connor recently wrote, "The key to preserving the independence of judiciary, however, is not to be found in the character of the selection system, but rather in the character of the person under consideration. No system of selection is adequate to protect the people from abuse by an unscrupulous judge. Ultimately, the character of the judge will do more to preserve his or her independence and the people's welfare than anything inherent in the system that places individuals on the bench."

Final thoughts: 1) No judge in the history of the state has ever lost a merit retention election; 2) The process of running for election requires a candidate to meet the people they will serve and submit themselves to the public judgment —a healthy and humbling proposition; 3) the current system, while not perfect, is a more balanced system.

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