Judges say politics are interfering with independence October 15, 2001 Assistant Editor Regular News Judges say politics are interfering with independence Amy K. Brown Assistant EditorA League of Women Voters of Tallahassee survey recently revealed that many judges in Florida believe politics are increasingly infringing on their ability to do their jobs.Florida’s 833 judges at all levels of the state judicial system were polled about their feelings on judicial independence, with 74 responding — about a 10 percent response rate. The responses were almost entirely anonymous, with judges only noting their years on the bench and the level of court they serve on.“This is a rare window into some of their thoughts and opinions about recent happenings that will affect the judiciary,” said Lynda Russell, president of the League’s Tallahassee chapter.Bar President Terry Russell said the survey was “a great opportunity to see how judges feel about judicial independence, which of course translates to their ability to be impartial, unbiased, fair, and unpolitical.”Russell said there is now a greater need than ever before to ensure the ability of the courts to protect and maintain their independence.“Judicial independence, of course, is the cornerstone of our democracy,” he said. “The fact that judges predictably believe they have to be free and independent to do their jobs is of extraordinary importance to a free and civil society.” A lmost 60 percent of respondents preferred appointing judges, according to the survey, and less than 28 percent liked the election of judges. The statistics also show that the longer a judge has served on the bench, the more strongly he or she supports appointment rather than election. For those judges with greater than 10 years experience on the bench, nearly 68 percent endorsed the appointment process, while for judges with less than 10 years experience, nearly 44 percent endorsed appointment, and another 22 percent had no preference.An overwhelming majority of the judges agreed that voters are generally uninformed regarding judicial candidates’ qualifications, and that there is no simple way to make them informed. Only two percent of respondents endorsed partisan elections for judges, and one commented, “[A]t least party labels would give voters some rough indication of the type of individual for whom they were voting.”The remaining 98 percent agreed that, if judicial elections were to continue, they should remain nonpartisan. The judges included comments such as, “Politics has no place in the judicial branch of government” and “Partisan elections would further undermine the public’s waning confidence in the judiciary.”Some of the judges expressed concern that elections of judges tend to be “popularity contests,” rather than merit-based races, and that the best way to guarantee quality judges is through the merit selection and retention process.Almost 77 percent of the judges believed the judicial appointment process has been fair, but more than 94 percent believed the new system — which gives the governor increased power over the appointment of judicial nominating commission members — will weaken the nomination process.While some respondents commented that the JNC system is biased “against the appointment of blacks and women,” many of the judges agreed the process has great potential for reducing the influence of politics in selecting judges. A weakness in the system, one judge noted, is the “public perception of the process being fixed.” Several judges called for more involvement from attorneys and the Bar, saying “the unfairness enters the system through the governor’s office,” and “the governor has too much control over the nomination process.”Others worry the new process will only increase the governor’s power. One judge commented, “[G]iving the governor a virtual veto power over commission members will ensure that nominees who share the governor’s political persuasion are chosen.” Some added, “Politics getting involved is never good for perception or reality,” and “merit has now dropped to fourth place, after race, gender, and now political ideology.”The judges’ recommendations for improving the appointment process were varied, but many noted problems arise when the Bar’s power is removed or lessened. Others noted “the removal of civics from our secondary education curriculum has eroded the public’s understanding of the courts,” and still others suggested a return to the former system. Legislative Involvement Nearly 96 percent of the judges believed the legislature should not be involved with judicial rulemaking. “How can judicial decisions be independent and unbiased if mandated by another and separate branch of government?” one judge asked.Almost 45 percent of the judges found that restrictions on hearing cases have limited their ability to render justice, but almost 81 percent said limits on judicial discretion have limited their ability to render justice. Many respondents cite sentencing restrictions and guidelines, and minimum mandatory sentences as having “taken discretion from judges.”“The legislature seems to want to. . . micromanage our sentencing process,” one judge commented. “[T]his can result in many forms of injustice,” another added. One judge even went as far as to comment that the legislature’s guidelines result “in the truly evil avoiding punishment and the technically guilty being senselessly incarcerated more often than should be tolerated in a free society.” Public Perception The Judicial Qualifications Commission system for disciplining judges effectively protects the public, according to 85 percent of the judges. Some offered suggestions for improvement, including “speed up the process,” and that it “should be more public,” but the majority believed the JQC disciplines effectively. Some, however, argued “there is a bias against conservative and elected judges,” and several others were not familiar with the JQC process or track record.The judges’ biggest concerns related to judicial independence seem evenly spread among the public perception that judges should be more responsive to the current mood of the public, attacks on the judiciary by other branches of government or special interest groups, and the failure of the public and the legislature to realize the need for a fully independent judiciary. The judges’ solutions to those concerns are fairly equally divided between education of the public and the other branches of government, and institution of merit selection and retention across the board.One of the most revealing statistics shows that nearly 95 percent of respondents admitted they are conscious of the ramifications of making an unpopular ruling, and 25 percent said this happens often. Although no respondents admitted this affects their rulings, almost 83 percent believed other judges are affected. Many of the judges commented that, “it’s part of the job”; however, some agreed it’s inevitable to worry about the possible ramifications of a case, given recent attacks on the courts and the increased likelihood for a judge not to be reelected. Others said they often spend extra time drafting an order or judgment that is likely to be met with negative public response, if only to “appear as neutral as possible.”“It’s not a popularity contest, and I expect I make decisions all the time that others don’t like,” one judge commented. “If I were concerned about making everyone happy, I certainly wouldn’t have chosen this profession.”Many respondents offered lifetime appointment as a solution to this increased pressure, and some suggested public financing of campaigns. However, the majority of comments recommended increased judicial independence and merit selection to prevent rulings from being influenced by public opinion. Several judges called on the Bar and other groups to educate the public, especially in response to the type of public outcry which resulted from the presidential election cases.“Although [the judges’] political parties and alleged biases were widely reported, when their decisions were impartially rendered,. . . nothing was said to correct the matter publicly,” one judge said. “It was a very, very unfair situation and very unfair to some highly intelligent, dedicated judges.”In his closing statements, Russell noted the league’s survey is important to all Florida lawyers, especially in light of requests by the responding judges for help from the Bar.“The Florida Bar stands firmly with the League of Women Voters with respect to judicial independence,” he said. The survey “is well, well worth review by the public, the media, and us.”The “Judicial Independence Project” survey was funded by grants from the League of Women Voters Education Fund, the Open Society Institute, and voluntary contributions from Florida lawyers.