Judicial Selection in a Hyper-Politicized Democracy

I am grateful to the Stetson Law Review for providing me this opportunity to comment on Judge Mark Klingensmith’s recent, thought-provoking article on judicial selection practices in Florida. Judicial selection is always an important issue, but in these highly politicized times concepts like judicial independence, political accountability, and public confidence in our governmental institutions are particularly salient. My comments are not meant as a critique of Judge Klingensmith’s article, but rather what I would describe as thoughts about the next steps in his analysis. 

The article focuses, among other things, on the apparent discrepancy in outcome between two votes: 1) Florida voters’ choice in 1998 to amend the state constitution to allow counties to choose whether to elect or appoint local judges, and 2) a round of votes in 2000 in which individual counties exercised their choice voted for two years earlier to endorse judicial elections. The article goes to great lengths to discuss the various factors relevant to, and potential explanations for why, the 1998 and 2000 votes came out the way they did, and I have neither inclination nor space to take issue with any of that discussion. I would, however, offer a slightly different perspective on the debate over judicial selection in Florida that took place at the turn of the last century, and suggest that this perspective has relevance for the current manifestation of that debate.