Preserving a fair and impartial judiciary: the cornerstone of our democracy.

• Author: Pariente, Barbara J.

Introduction

I write to highlight the important civic education program of the National Association of Women Judges (NAWJ), the Informed Voters Project, available online at ivp.nawj.org, and why I urge every lawyer and judge to become familiar with the program's materials, PowerPoint presentations, and award-winning video narrated by former Justice Sandra Day O'Connor. These materials are also available and easily accessible at The Florida Bar's website. (1)

Each of us, as lawyers and judges, play a critical role in reminding our fellow citizens of the importance of a fair and impartial judiciary in our democracy. This public outreach is even more critical when considering the influx of special interest money in merit retention elections where campaigns opposing the retention of judges reduce the operation and purpose of the judiciary to soundbites. Phrases such as "activists," "legislating from the bench," "unelected," "ignoring the will of the voters," and "out of control" are often used by those seeking to attack judges for decisions with which they disagree. Unfortunately, these soundbites have the potential of resonating with the public and uniformly have the potential for a corrosive effect on our judiciary.

We are all aware that since the U.S. Supreme Court's 2010 ruling in Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010), special interest groups have spent record sums of money to influence the outcome of elections across the country. Less known, however, is that these groups have not limited their spending to campaigns that are inherently political in nature, but have also turned their attention to state judicial merit retention elections, which are not intended to be political at all. As one recent report found, "average spending per retention race has surged in recent years--from an average of $17,000 per seat between 2001-08 to $178,000 per seat between 2009-14, a tenfold increase." (2)

This increased spending in judicial merit retention elections is obviously troubling. Indeed, public polling disturbingly indicates that 87 percent of voters believe that campaign contributions and other special interest spending in judicial elections influence how judges make decisions on the bench. (3) The corrosive effect on the public's confidence in the integrity of our judiciary cannot be doubted when an overwhelming percentage of voters believe judges are influenced by special interest money.

Despite the fact that Florida's merit selection and retention system for selecting and retaining appellate and Supreme Court judges had been in place for over 40 years, I along with my colleagues, Justice Fred Lewis and Justice Peggy Quince, were the targets of unprecedented political attacks in our merit retention election in 2012. These attacks were not based on our ethics or competence, but because of disagreement with a handful of decisions the court had issued.

While Florida voters overwhelmingly retained the three of us in 2012, the entire experience reinforced for me the importance of the ongoing need for consistent outreach to educate the public. The Florida Bar has played its part with civic education programs, such as The Vote's In Your Court and its ongoing excellent civics education program, Benchmarks: Raising the Bar on Civic Education. NAWJ's Informed Voter Project is another great resource for educating the public about the role of our courts. The project recognizes that the threat against our courts requires a collective and consistent response that takes into account existential threats to the fairness and impartiality of our courts--such as misleading messages that attempt to inject politics into the third branch of our democracy. We are fortunate to have many partners in this effort, including the assistance of the Florida Association for Women Lawyers, as well as national groups like the American Board of Trial Advocates (ABOTA).

I am thankful for the efforts of The Florida Bar to cast light on this important issue by reprinting portions of an article I coauthored detailing the purpose and nature of the merit selection and retention process, as well as the current threats to this process. Hopefully, by continuing the conversation about the important role our judiciary plays in our democracy, we can ensure that our state courts remain fair and impartial.

Negative political attack ads and increased spending by special interest groups in political elections have sadly spilled over into state court retention elections, with potentially devastating effects--the loss of public trust and confidence in the fairness and impartiality of judges. (4) While federal judges are insulated from political influence through lifetime appointments under our federal Constitution, almost all states have some form of judicial elections.

On April 29, 2015, Chief Justice John G. Roberts, Jr., writing for the U.S. Supreme Court majority in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015), recognized that "judges are not politicians, even when they come to the bench by way of the ballot. And a [s]tate's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A [s]tate may assure its people that judges will apply the law without fear or favor." (5)

As important as this recent decision is to preserving the integrity of the judiciary, the reality is that state court judges are currently without protection from political attacks from special interest groups, especially when they appear on the ballot for a merit retention election. In her concurrence in Williams-Yulee, Justice Ruth Bader Ginsburg recognized the recent increase in spending on opposition advertisements in judicial retention elections and noted that the "[d]isproportionate spending to influence court judgments threaten both the appearance and actuality of judicial independence." (6)

Taking advantage of the vulnerability of state court judges who are constrained by many ethical limitations and by wise self-imposed restrictions on their public comments, some politicians and special interest groups have declared open season on judges who they claim are out-of-step with the march of public opinion. (7) Although the mainstream press and even political satirists have taken notice of this disturbing trend and criticized the underlying flaws of judicial elections, (8) unfortunately many times no distinction has been drawn between states that have contested partisan judicial elections and those states that have adopted merit selection and retention as the means for choosing their judges.

Blurring the distinction between merit retention elections, where a judge is attacked by partisan political forces, and contested judicial elections between competing candidates, particularly in states where the judges are...