By Nov. 3, you will have heard a lot about whether Florida should elect or appoint trial judges.
I will be arguing for the side that says, "Appoint them."
That task, sorry to say, became somewhat more challenging two weeks ago when Gov. Lawton Chiles appointed E.J. Salcines to succeed a retiring judge of the 2nd District Court of Appeal.
It was a transparently political appointment. Lt. Gov. Buddy MacKay, who has not gotten too many favors from his boss, will reap the rewards from this one when voters in West Tampa have their say in the governor's race. Salcines is not merely popular there; he is a folk hero.
Salcines was Hillsborough County's state attorney until 1984, when he was defeated for re-election during a criminal investigation by the U.S. attorney at the time, Robert W. Merkle.
To say that Merkle was aggressive about Salcines would be an understatement. Almost any lawyer would have had to advise Salcines, as his did, to assert his Fifth Amendment privilege against self-incrimination when Merkle hauled him before a grand jury.
This was, of course, a lose-lose situation for Salcines. Testify, and Merkle might trap him in some inconsistency. Take the Fifth, and the voters would draw their own conclusions.
When it was over, Bill James was the state attorney. Salcines' only consolation was that Merkle had been unable to indict him for anything.
Simple cronyism is not a crime.
One of his friends called me during the campaign to plead Salcines' case before this newspaper's editorial board.
The caller was Louis de la Parte, a former state senator with a luminous reputation for integrity.
So when he assured me that "E.J. is not a crook," I replied that on his word I was prepared to believe it.
But wasn't it true also, I asked, that Salcines didn't know how to say no to a friend seeking a favor?
Lou acknowledged that it was true.
West Tampa is hardly the only place in the world where it is considered a virtue to do favors for your friends.
But if there is one place where it should not be, the judiciary is that place. Judges are sworn into office to use their best judgment, not to make their friends happy. Among all the public's offices, theirs allow the least room for error. This is especially so in the appeals courts, because most of their decisions are final.
Florida's Constitution requires that the five district courts of appeal will be the courts of last resort for most cases. Among the few that can be appealed to the Supreme Court are decisions that hold laws unconstitutional or conflict with another district court's decision in a similar case.
The 2nd District recently upheld foreclosures against 35 individual Tierra Verde condominium owners who had never been formally notified of a contractor's suit against their condo association. There seems to be no way to appeal that decision, which will cost each of them at least $6,700, if not their homes.
The Supreme Court used to have a lot more discretion to take appeals and abused it to favor certain friends. One justice, who was later forced to resign for multiple transgressions, habitually rounded up votes on behalf of a lawyer who had been his friend and campaign supporter. Concerning a workers' compensation appeal brought by a fraternity brother, an aide testified to a House committee that the justice glibly told him, "This case is a fix."
Two new justices resulted from that investigation. So, eventually, did two systemic reforms: limits on discretion endorsed by the justices themselves, and an end to contested elections for seats on the district courts and the Supreme Court. Candidates are screened by panels which send their nominations to the governor, whose choice is final. The judges still appear on the ballot for re-election, but the question is simply yes or no: Shall Judge so-and-so be retained?
Was this supposed to take politics out of it? Only in someone's dreams. But it was intended to control the politics, so that only qualified candidates would make the bench. Most of the time, that's how it has worked. One or two exceptions do not disprove the rule.
The experience overall has been good enough, in fact, to commend it for the trial courts, where vacancies occurring at mid-term are presently the only ones filled by the appointment process. The rest of the time, the better politician is likely to beat the better lawyer at the polls.
The Constitution Revision Commission has put on the November ballot an amendment that would allow voters in each jurisdiction to decide between appointment and election for county and circuit courts.
Salcines' appointment was, to say the least, inconveniently timed.
My colleague Howard Troxler wrote of Salcines last week:
"He is an experienced man and knows the difference between the discretion he had as a politician, and the ironclad rules he must live under as a judge. I trust him to live up to them."
We have no choice but to hope so.
Curious voters, meanwhile, may wish to ask MacKay and the other candidates for governor what choice they would have made. Better yet, what choices they would make.
Would they pick a judge whose own defenders acknowledge his reputation for cronyism? Or would they insist on someone beyond all reproach?