TC PALM Editorial: Judicial Candidates Hide Behind Florida Bar's Restrictive Free-Speech Canon
Florida's sparsely contested judicial contests continue to suffer from a lack of transparency
Florida has 162 Circuit Court judgeships up for grabs this year. So far, just 23 of those races are contested and only five incumbents face a challenge.
Voters might infer that the current crop of sitting judges is doing such a spectacular job that no competition is necessary. That questionable inference is buttressed by the Florida Bar, which effectively muzzles campaign debate via the "Code of Judicial Conduct."
Canon 7 prevents judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." It also prohibits "statements that commit or appear to commit them with respect to cases, controversies or issues likely to come before the court."
The Code of Conduct may be a well-meaning attempt to keep "politics" out of the judiciary, but elections are, by definition, political. To properly exercise their franchise, voters need transparency not robotic responses and legalistic stonewalls.
Federal courts, up to the U.S. Supreme Court, have repeatedly held that judicial candidates like every other seeker of public office have First Amendment rights to free speech.
In a 1990 case, American Civil Liberties Union v. the Florida Bar, a federal district court threw out provisions of Florida's Code of Judicial Conduct that barred judicial candidates from announcing their views of disputed legal or political issues.
Yet this state's Bar and its disciplinary council continue to chill the environment.
"Florida is defying these decisions," says James Bopp, an Indiana attorney who litigates free-speech issues nationwide. In 2006, he sued over judicial candidates' failure to respond to a questionnaire from the Florida Family Policy Council. The case is pending at the 11th U.S. Circuit Court.
Calling this state's canon "unconstitutional," Bopp says the Bar has "a lot of authority over judges." And, it seems, over voters, as well. With precious little disclosure or debate, the electorate can only go by what the Bar deems appropriate.
Acting as a virtual cartel, the Bar indulges in a bit of politicking itself by issuing recommendations in judicial retention elections. Batting 1.000, it has advised Floridians to retain every judge, and voters have obeyed that counsel every time. The Soviet Union's Politburo had greater electoral diversity. (Rumpole notes that our Comrade Bar President has done a very good job, da?)
Lawyers, including lawyers who want to be judges, maintain that the judiciary is "different" than the executive or legislative branches of government. But to suggest that politics don't enter into the courtroom is simply fatuous. As long as the Florida Constitution provides for election of judges, the electoral process must be open and transparent. Democracy demands it.
"There's a move nationally toward further disclosure of judicial candidates' philosophy," says Tom Fitton, president of Judicial Watch in Washington, D.C. That trend, backed by federal court decisions, needs to play out in the Sunshine State, which, in other arenas, has some of the strongest open-government laws in the country.
It's time the Bar and its barristers let the sun shine in.
Rumpole says, isn't it a little bit much to ask our dear robed readers to speak intelligently in public on issues of importance? It's not like most of them had any training or experience in public speaking before ascending to the bench.