To retain or not to retain--that is the question.

• Author: Hawkins, Scott G.
• Position: PRESIDENT'S PAGE

In the March issue of The Florida Bar Journal, I published the column "Demystifying What Judges Do." The column generally examined the role of judges in our democracy and urged lawyers to help others understand how judges are vital to preserving the "rule of law."

So often we hear public discussion on the importance of the rule of law. Yet seldom is it acknowledged that the strength of the rule of law depends on the strength of those charged to uphold it: our judges.

Why does debate typically stop with the rule of law, yet fail to examine the qualities of a good judge? It is curious: The qualities of judicial merit are rarely treated in public debate.

Why Does this Matter?

In November 2012, Florida's voters will be as ked to consider the qualities that mark a judge of merit. More particularly, Florida's citizens will vote on whether to retain 16 state court appellate judges and three state supreme court justices. Voters will decide whether particular judges and justices should continue on the bench. The central question: whether those on the ballot "merit" being retained.

Historical Perspective

In considering the retention vote, recall that the merit system was instituted in 1976. Florida's citizens amended the Florida Constitution to implement the current system which emphasizes merit (over politics) in judicial appointments. Merit is emphasized when judicial candidates are nominated by nonpartisan judicial nominating commissions and is again emphasized when sitting judges are subject to a nonpartisan merit retention vote. Adopted by popular vote, this merit-based system has functioned uniformly under Governors Askew, Graham, Martinez, Chiles, Bush, Crist, and Scott.

[ILLUSTRATION OMITTED]

Structural Considerations Relative to Assessing a Judge's Merit

Florida voters face a difficult challenge when deciding whether a judge merits retention. In part, this difficulty stems from campaign limitations and the nature of judicial office.

Unlike candidates for representative elective office, judicial candidates are prohibited from sharing views on policy or indicating how they might rule in certain cases. Such...