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Florida Supreme Court Retention Election

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The ongoing problem in judicial tenure is striking a balance between judicial independence and judicial responsibility.  We want judges to be independent enough to render decisions based on the law and not politics.  But if they are too independent, they tend to drift toward rendering decisions based on their personal preferences rather than the law.  That is the problem with life tenure for judges with the power of judicial review of statutes.  The Antifederalist writer "Brutus" nailed it way back in 1788:

In short, they are independent of the people, of the legislature, and of every power under heaven.  Men placed in this position will generally soon feel themselves independent of heaven itself.
Hamilton's response is one of the weakest and least convincing passages of the Federalist, and history has proven Brutus right.

There is no perfect solution to this problem, but the one that comes closest to optimum, in my view, is for judges to stand for a yes/no retention election at some long interval.  Experience shows that it is extremely difficult to remove a judge in such an election, but the safety valve is there when it is truly needed.

In Florida, the Republican Party's executive board has voted to oppose three justices of the Florida Supreme Court for retention.  Their announcement cites the capital case of Joe Elton Nixon.  Nixon carjacked Jeanne Bicker, forced her into the trunk of her MG, drove her to a remote area, tied her to a tree with jumper cables, and set her on fire, burning her to death.  The Florida Supreme Court's reversal was indeed an awful decision.  CJLF's amicus brief in the U.S. Supreme Court is here.  The high court reversed in a unanimous decision by Justice Ginsburg.  See Florida v. Nixon, 543 U.S. 175 (2004).

I do not know enough about these three justices' entire records to know if they should be retained, but they are making the usual invalid argument that any campaign against retention is an attack on "judicial independence." That is essentially an argument against having retention elections at all.  Michael Peltier has this story for ThomsonReuters.

California's experience proves the contrary.  Three justices were deservedly denied retention by the people in 1986.  The court was vastly improved afterward.  We very rarely see its decisions reversed by the U.S. Supreme Court.  When the high court resolves conflicts between the California Supreme Court and the Ninth Circuit, the answer is nearly always that the California Supreme Court was right.

Let the Florida justices defend their records on the merits.  Judges should reverse criminal judgments, even in horrible cases, when the law requires them to do so.  They should not, however, bend over backward to find an excuse to let murderers off the hook.  When they do, the people should show them the door.

2 Comments

In a future post, will you discuss the grounds for the U.S. and Florida Supreme Court decisions in Nixon? Also, why is it now an issue when all three judges have already faced and survived a retention vote in the interim? I think people suspect an attack on judicial independence when the opponents of retention dig into old cases and focus on the facts of one case without mulling the judges' reasoning or looking at the overall record.

Nope, don't plan to. I've given the citation, so anyone who wants to read the case can.

The main point of my post, at the risk of repeating myself, is that a defense to a retention challenge that simply asserts, in effect, that judges should not be challenged is not valid. The people of Florida have chosen this system (wisely, IMHO) as the optimum balance. Judges need to defend themselves on their records, not by taking umbrage that a challenge is being made at all.

Again at the risk of repeating myself, I do not know enough about these justices whole records to take a position on whether they should be retained.

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