Merit Selection: Best system for choosing Judges

Scott J. Silverman, a Circuit Court judge in Miami-Dade County, is chairman of the Florida Bar’s Committee on the Rules of Judicial Administration.

     Voters soon will reevaluate the manner in which trial judges are selected. In 1998 Miami-Dade County voters, by nearly 66 percent, agreed to amend the Florida Constitution and give next year’s voters an opportunity to establish a system that selects trial judges based on their proven merit and qualifications. When those judges’ terms expire, voters then would say whether the judges should be retained.
     Currently trial judges may be either elected or appointed by the governor from a list candidates screened by an independent judicial-nominating commission. In either case, trial judges stand for election at the end of their terms.
     Though I am a product of the elective system, I am nevertheless firmly convinced that the public, the judicial system and the administration of justice are best served by adopting a system of merit selection and retention for trial judges.
     Florida’s plan of merit selection and retention for appellate judges has been in place since 1976 and, according to the Florida Bar, has produced appellate judges whose Bar poll-approval ratings have averaged 87 percent since 1978.
     Thirty-four states have adopted merit-selection plans. Notably, not one of those states has ever chosen to return to contested judicial elections.
     Merit selection and retention have significant benefits over contested judicial elections. It will provide a better qualified judiciary; hold each judge publicly accountable through a retention vote; end contested judicial elections; eliminate judicial-campaign fundraising, except under the rarest of circumstances; and broaden judicial independence.
     Contested judicial elections focus primarily on a candidate’s name recognition and ability to raise campaign funds. Qualifications are less important than what a name implies as to gender, religious, cultural, racial and ethnic identities.
     Last year in Miami-Dade County more than $5 million was contributed and loaned to judicial campaigns. The money was derived mostly from people within the legal profession, including the candidates themselves.
     Donations to judicial campaigns clearly erode confidence in our courts. While most attorneys contribute because they want competent judges, a 1998 survey showed that 83 percent of the public thought that campaign contributions strongly or somewhat influence judges’ decisions.
     Under a merit plan, the governor would appoint all trial judges from a list of nominees submitted by an independent judicial-nominating commission made up of both lawyers and lay people. The commission would investigate and select the best candidates based upon character, legal skills, qualifications, managerial capabilities and references.
     Merit-selection to date has given our county a more-diverse judiciary. For example, 75 percent of all African-American judges in Miami-Dade’s trial courts reached the bench through merit selection.
     Opponents to the merit plan frequently suggest that it eliminates the right to vote. Yet in 1996, only 16 percent of the Circuit Court judges whose terms expired faced contested reelection; in 1998 only 39 percent. If a merit plan is adopted, voters’ rights will expand, because the public will vote on whether to dismiss or retain all judges whose terms are expiring — 100 percent.
     Miami-Dade County deserves to have the best and most qualified trial judges. A merit system will serve that end.

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