2016 Ballot Recommendations — Judicial Elections

Unlike most law professors I know, I support the idea of judicial elections at the state level as a reasonable democratic check on what I believe should be the expansive power of judges to interpret the state and federal constitutions.

As I’ve said before, if it were up to me, I’d have the executive branch pick judges with legislative confirmation, followed by a California-style retention election every few years in which there would be an up or down vote on the incumbent. If the vote was down, the executive would pick a new judge. It seems to me that the right question is “has this judge done a good (enough) job” — something voters might be able to figure out — rather than asking voters to try to guess from electoral statements which of two or more candidates might be the best judge.

Florida’s system uses appointment plus retention elections for Supreme Court Justices and District Court of Appeal Judges, but not for trial courts. The Governor can appoint judges to fill vacancies between elections, but otherwise those jobs are straight up elected, so this election pits one or more challengers against the incumbent unless, lacking opposition, the incumbent wins reelection automatically; some trial judges were indeed unopposed this year. There are also open seats when the incumbent retires.

Here’s what my recommendations are based on:

  • My personal view is that I will vote for an incumbent judge unless there’s reason to believe they’re doing a bad job.
  • After supporting incumbents, my other rule of thumb in sizing up candidates before even getting to the details of biography and practice experience is that in all but the rarest cases of other important life experience we ought to require at least ten years of legal experience from our lawyers before even considering them as judges. Fifteen years is better. I will very rarely support a judicial candidate fewer than ten years out of law school. It just isn’t enough to get the experience and practical wisdom it takes to be a judge.
  • I look to see if the candidate filed a voluntary self-disclosure form with the state. Most don’t. After that I look at the Dade County Bar Association Poll in which lawyers rate the candidates’ qualifications. The response rate is not that great on this poll, but I do think that if there’s a large majority one way or the other that tells me something. Sometimes, I’ll also look at the Cuban Bar Association poll also, although again the turnout isn’t amazing. I look out for endorsements by SAVE Dade (a small plus, despite their support for Gimmenez) and Focus on the Family (a small minus). If all else fails, I look at the Miami Herald’s view, although frankly I think the decision-makers there are so terrified of annoying establishment candidates that their endorsement only means something if they buck an incumbent. And when did that last happen?
  • And oh yes, I read local blogs and listen to gossip too.

This year we have three retention elections for Supreme Court Justices, two retention elections for the 3rd DCA, and two contested elections for Circuit (trial) judges. There are some tough choices.

All three Justices up for retention are core members of the court’s right-wing majority. If you were casting your vote as a partisan, that might be all you need to know. I don’t, however, think that is the right approach to judicial retention elections. I think, so long as Justices seem honest and competent, we should make wide allowances for honestly felt differences about the law, lest the courts become a third branch of the legislature. I think in the case of a competent but partisan Justice one should vote not to retain them only if that Justice appears to be letting partisan views trump plausible legal conclusions, or only if that Justice’s views are so extreme as to be unreasonable. That is why I’m going to vote to retain Justice Labarga, one of the three Justices up for retention even though I think a number of his decisions have been mistaken.

It’s also why, after a long time thinking about it – which accounts for the long delay in this post, as it’s not something I do lightly – I’m going to vote against retaining Justice Charles T. Canady and Justice Ricky L. Polson . I wish I had time to write a very long post about why, which would talk about their views on both criminal and civil law, although I’m not sure anyone would read it. One recent example will have to do.

Consider the recent case of Hurst v. Florida in which the Florida Supreme Court held that the death penalty cannot be imposed without the unanimous support of a jury. In light of evolving US Supreme Court precedent, and the acts of other states, this was anything but a surprising decision. It was the ordinary functioning of the legal process. Justice Canady wrote a dissent in which, to be fair, Justice Labarga concurred (you can vote against him too if you must). It’s not in any sense an incompetent piece of work; it’s just pettifogging and mistaken, straining at every loose thread in the precedents to try to preserve space for a concept (non-unanimous death penalty juries) whose time has clearly passed. Justice Pariente’s concurrence in the same case addresses one of those procedural attempts; the substantive ones are no better.

Incidentally, if you care, all three Justices got good ratings in the recent bar poll: Labarga got 91% support for retention, and Candy and Polston both got 84% support.

On the 3rd DCA, I’m going to vote to retain Edwin Scales , appointed 2013, and to retain Linda Anne Wells . The bar polls on both were positive: 91% for Scales, 86% for Wells, and I haven’t heard anything to the contrary.

The contested elections are harder calls.

Group 34 has a runoff between my choice in the first round. Blumstein gets a black mark for advertising over-emphasizing his reserve commission in the Navy JAG. Perez-Medina gets two black marks, one for lack of experience, one for being endorsed by people I mistrust. So I guess I’m voting Blumstein. FWIW that’s the Herald’s choice too.

Group 52 pits Carol “Jodie” Breece in a runoff against Oscar Rodriguez-Fonts. Both would be good – I wish I could have one of them in Group 34. Here’s what I wrote in the first round, and it still applies:

The race is between Carol “Jodie” Breece (U.Md. Law) the ethics counsel for the Broward County Inspector General’s Office [yes, not an oxymoron], a former trial attorney and Miami-Dade assistant state attorney and Oscar Rodriguez-Fonts (J.D. UM), a former Miami city attorney and Miami-Dade public defender.

Bar poll gives Ms. Breece 33% exceptionally qualified, 57% qualified; Mr. Rodriguez-Fonts gets 20% and 61%, so a slight edge to Breece there.

Both candidates have exactly the right sorts of experience, although Breece has 25 years to Rodriguez-Fonts’s 15 years. Breece has the SaveDade endorsement, and several unions; unsurprisingly the police endorsed the prosecutor over the PD. Breece’s web site states that, “When elected, Jodie will be the first Asian American trial judge in Miami in 40 years and the first female Asian American judge in Miami’s history” because her mother is Korean. I found the word “when” rather arresting.

Both appear on paper to be very credible candidates. The Herald endorsed Breece. Local legal legend H.T. Smith endorsed Rodriguez-Fonts.

Either Breece or Rodriguez-Fonts would seem a fine choice, although I find an edge for Breece unless you are a very strong UM law partisan.

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