Merit retention is the process whereby Florida's Supreme Court justices and District Court of Appeal judges periodically must seek re-election or retention in office not by running against opposing candidates, but by voter approval of their performance. On Nov. 6, Florida voters will be asked to vote "Yes" or "No" for retention of Florida's Supreme Court Chief Justice Leander Shaw and appellate court judges. In 1971 a governor's executive order became the basis for Florida's judicial nominating commission system of merit selection, applicable to all levels of the state judiciary. The companion merit retention process was implemented in 1976 when Florida voters overwhelmingly approved a constitutional amendment requiring merit retention elections for all appellate court judges.
There were a number of reasons why Florida voters passed merit retention. The scandal of judges obtaining campaign funds from lawyers who would practice before them was one reason; the fact that judges are restrained from giving their views on subjects that might come before them and, thus, cannot really campaign, was another; and then there was the major reason that most voters are not familiar with judges at the Supreme Court level or the district courts of appeal level. Thus, voters need education from a knowledgeable source in order to vote on retention of a judge.
Merit retention has advantages over popular election for retaining judges based on their records, but the system has a disadvantage that caused its adoption in the first place.
This fault, never more evident than in the attack launched against Shaw, allows a particular group to air a particular gripe without reference to the total record of the judge in question.
Lack of knowledge of the total record can influence an electorate that may remember only the publicity generated by the adverse remarks. If the voting public is not well informed, there always is the danger of the system being destroyed. It would be a disaster if merit retention, for which so many people fought for so long, becomes the victim of a particular fight over an issue, which in the case of the chief justice of Florida's Supreme Court, was one where he wrote the opinion on the unconstitutionality of a law that abrogated the privacy amendment of the Florida Constitution.
It would seem that the situation presents a wonderful opportunity for the news media and the Florida Bar together to present the education needed by the voters to make a fair and reasonable decision on merit retention of a judge, particularly on one of the Florida Supreme Court. The total record of the judge in question should be publicized highly throughout the state.
It would not be unreasonable or unfair to publicize and review the record that caused the nomination committee to submit the judge's name to the governor for merit selection in the first place.
It is imperative that two of the most powerful sources of public education, the news media and the Florida Bar, cooperate and see that the voters of Florida know the records and backgrounds of judges up for retention. This is particularly true for the chief justice of the Supreme Court of Florida.
Cecelia F. McGinnis is justice consultant to the League of Women Voters of Florida.