This column appears in Florida Today, a Brevard County paper. But the topic can apply as a national subject as well.


Marshall Frank: Local judges should not be elected

Has anyone ever thought about the system of electing local judges?

Unless a person has been before a judge in a courtroom, or they know the candidate personally, voters usually have no idea for whom or what they are voting. It’s no wonder less than 22 percent of Brevard County’s registered voters turned out to vote in the August primary election.

In that election, several names appeared on the ballot for circuit and county judgeships, most of whom were completely unknown to the general public. Yet, people go to the voting booth and mark their ballots for the names they most often saw on roadside signage, or for the person they declare best qualified because they were an incumbent. No doubt, some unknowing voters will cast ballots based on ethnicity, race, sex or other nonsensible designations.

Few voters even know what qualifications are required for a person to reach the bench in Florida. Amazingly, a judge can be appointed or elected who has virtually no experience as a practicing attorney.

According to state law, anyone can be a circuit or county court judge as long as he or she is a dues-paying member of the bar association for at least five years. That’s it, folks. The man or woman who is weighing evidence and deciding your guilt or innocence in Florida may have been working as a landscaper or computer engineer, and may have never set foot in a courtroom other than moot court in law school. Yet, all we know when we vote is the sound of their name and the images imbedded in our heads from the array of signs and banners.

Theoretically, a vacant judgeship can be filled by a sitting governor based on friendships or quid pro quo, depending on an appointee’s generosity during the election year.

During my 30 years in the Miami-Dade Police Department, I knew judges who were snorting cocaine in their chambers minutes after they sentenced a defendant to prison for possessing the same substance. Others were caught in stings, taking bribes behind chambers to be more liberal with bond setting or sentencing for friends of friends. Yes, they went to prison.

Judges also appoint defense attorneys to indigent defendants in major crimes. I’ve known cases in which the appointed lawyers were so over-the-hill, lazy, drunk or inept, they virtually guaranteed the prosecution a guilty verdict. In one of those cases, the defendant was innocent, but went to prison anyway. The appointed attorney had impressive credentials on paper, but was otherwise incompetent. The lawyer got his money. The state attorney was happy. There were no legal grounds for successful appeals.

There is a way to fix the problem.

Eliminate elections for judges and institute a system for appointing them. Governors can appoint a bipartisan council, which receives recommendations for judges whose backgrounds are reviewed and evaluated, then sent back to the governor for approval. An active list is certified from which appointments provide four or six years of service. When vacancies occur, the governor’s office conducts a blind drawing from the list.

No corruption, no quid pro quo. And a fully qualified, nonpartisan jurist is appointed.

Regardless, we must set higher standards for men and women to serve as judges. Such standards should specify a significant term of practice in the judicial field for which they aspire, such as 10 years working in criminal and/or civil law with extensive trial experience.

This is not to suggest our current servants on the bench are not qualified. I’m sure they are. But for the electorate, for government and for the judiciary, we can do better if we think outside the box.

The days of Judge Roy Bean, when judges were known by everyone in the community, are long over. Let’s modernize.



Marshall Frank

GREAT ARTICLE! I hope the readers take heed. Politics have no place in our legal system.

Marshall Frank
Harold Swift

Democrats would find a way to screw that up too.

Marshall Frank
Dick Lineberger

Mr. Frank, Once again you have proposed a common sense solution to a real problem. On a dissimilar legal matter – is there any way to roll back the innumerable adverstisements from lawyers seeking clients that have been in an accident? Just seems wrong.

Marshall Frank
J H Weis

Makes sense to me. What we have now is nonsense.

Marshall Frank
Randal Agostini

I agree completely – You could also add to: Take politics out of judgements.

Marshall Frank
lou fischer

Have known this for a long time, but never knew what to do about it. Still don’t.

Marshall Frank
Steve Gure

In my view the entire criminal justice system is not working. It is not just the judges. It is the entire system. The way to fix it is to completely dismantle it and start from scratch.

Marshall Frank

….or in the view of some attorneys.

A good attorney knows the law…..a GREAT attorney knows the judge. Says it all. :0)

Marshall Frank

I totally agree with the article and I don’t vote on them for the exact reason stated. I was was hoping that there would be information within it on how the public would propose to the state governmnet to do just what you suggested. I also as hoping for information on how to check credentials or some webpage to find out how current judges handled certain cases, somewhat like the voting record for our elected government.

Marshall Frank
Ron Fischer

No organization in the world has presented the United States with a greater threat of demise than the American legal system. It has become rotten with corruption and public mistrust.

But, it’s an organization with built-in self-protection institutions like the BAR Association. Most people would be surprised at how few attorneys or law firms ever suffer a verdict decision that awards more than a million dollars – for any offense!

Marshall Frank
Snake Hunter

All True. The current system of choosing a local judge is simply… Name Recognition.

So, If a “deep-pockets rascal” wants to put his puppet on the bench in your district he buys more signs than all the other candidates combined. Money talks… B.S.Walks!
Also, Lifetime Appointments at the U.S. Supreme Court is a dangerously flawed system
when the majority political party seeks to “pack the court” for unfair political advantage.
Term Limits For Judges & Politicians Would Vastly Improve This Great Republic. – reb
___ ___

Marshall Frank
David Lee Valdina

I am a member of the Massachusetts Bar and in that state we have a system similar to that suggested by Marshall. It works well.

As to the issue of the term of appointment, that is a more difficult problem. There are pros and cons to lifetime appointments and no simple solutions.

Additionally consider this: No really good athlete wants to leave the game to become a coach. You do that when you can no longer play at a high level. And with an attorney at the peak of practice the same considerations. Trial Court Judges should have had years of trial experience as an attorney. Appellate Court Judges should have Trial Court judging experience and are helped by having been law professors. My opinion.

Marshall Frank
Chuck Pierce

We are talking about state judges and state judges only. No Federal judges need to apply.
I agree that judges should not be elected, I do disagree with you on two points, length of service and confirmation. The judges should be chosen from a list of well qualified candidates for the position, the question is how the list is put together, by the Bar, by a group of citizens who have knowledge of the Lawyers in question, do they have to fill out a form that give there history and financial dealings. The second issue is an appointment even one that simply has the governor blindly pick is not perfect. I would prefer a system where the senate must approve the appointment when they come into session, judge is not seated until the Senate approves.
The last thing is term of service, 4 to 6 years is a very short period of time and like most thing being a judge requires training and experience. I would put the time of service at 20 years, with the requirement that the wealth of the judge be place in a blind trust.
Same ideas but with some changes around the edges. The system does need to change.

Marshall Frank

That really is a tough one, Marshall. You’d think that appointments to the US Supreme Court would be the ultimate in selecting intelligent, fair judges…

Here in North Carolina, at least in the western part, they don’t put the party affiliations of judges on the ballot on the theory that that makes them nonpartisan. But especially in these days, party affiliation at least puts a person in a broad ball park of political, moral and judicial philosophy.

I try to do my homework before I go to vote, but it’s really hard to find out anything about judicial candidates–at least until the advent of the Tea Party. They’re doing a great job of researching all local candidates and putting out what they know. That’s the main reason we have a splendid Congressman now from our district–we had two really good Conservative candidates for the Republican side–the Tea Party liked both, but leaned toward Mark Meadows. That tipped my vote.

Electing judges is fraught with perils, but maybe even more so appointing them outright. Theoretically having an elected body–the Senate, for example–vet and approve an appointment should be the perfect balance. But…

Jewish law is the best system, but not workable except as the court of last resort like murder, treason, etc.–takes too many judges to sit on a single case. Moses’ system, as recommended by his father-in-law, Jethro, is the foundation of our justice/legal/military/government organization today–with a key difference. When he appointed the leaders of thousands, who appointed the leaders of hundreds, who appointed the leaders of tens, those leaders weren’t arbitrarily selected by the powers that be. They were natural leaders who emerged from their tribes to leadership through common consent by virtue of competence, learning, integrity, courage. It was the same system of self-leadership–the purest form of democracy–that governed Afghanistan for thousands of years up to the national catastrophes of Soviet occupation, the Taliban and the dictates of well-meaning foreigners.

Long ago I heard a great rabbi say, “there are no complicated problems, only complicated solutions.” I’ve been chewing on that one for years.

Marshall Frank

Marshall, you know the old judge known as “let em go Joe.” He was a political appointee and then was unknown to the public until a number of cases came to light in which he let violent criminals go who then went out and committed more violent crimes. Nothing could be done until he was unelected at the next election cycle. I still want the public to be able to throw judges out who embarassed their office or who do not reflect the communities interests. I think that judge in Montana who let the rapist go and blamed the 14 year old girl for her own victimization was an appointed judge who was well liked by the local bar association. While neither system in perfect, giving total control to the local bar association, ie. lawyers, is far worse.

Marshall Frank
Betty Lou

I agree with your article.

However, my concern would be with the governor truly selecting a bipartisan council.

Your recommendation is the best under the circumstances.

Betty Lou

Marshall Frank
David Waksman

As usual, Marshall, there are two sides to most arguments. Generally I agree with you. A statistic I saw some time ago said that 95% of the indicted judges were elected, rather than appointed.

The past few years being a female from certain demographic groups almost guaranteed a win at the polls, and some very qualified male judges were voted out. After 35 years of practicing in our courts, I too, am leary of the elective process.

However, there are some advantages. We both knew Len Glick, who served with distinction in the Dade SAO Major Crimes Unit. He was turned down by the Judicial Nominating Committee so many times, that he decide to run for Circuit Judge. After 19 years as a prosecutor, he won his election and was a fine Criminal Division judge for many years.

The other advantage is allowing the people to vote out a bad judge. Without mentioning names, that has happened a few times.

There is a third alternative. In the Court Broom scandal, the federal grand jury indicted about five judges, later convicted of taking money from dope lawyers.

All in all, I prefer the appointive process, similar to the one used for federal judges. A committee reviews the applicants and submits a series of hopefully qualified names to the governor. He selects those he wants. Not perfect, but better than judicial candidates seeking campaign donations from the electorate and waving signs on the highway. Keep in mind, judicial candidates may not talk about their politics, or what they will do if elected. So what can they talk about: only irrelevant issues.

The old saying that the system is not perfect, but the people deserve to have a say, does not answer the question. The vast majority of the people, even if they have been to court a few times, are in no position to determine who will be a good judge.

Even the Dade Bar Assoc’s Judicial Poll (voting limited to members, many of which do not go to court regularly) and the Miami Herald recommendations, while helpful, don’t guarantee a good result. This year’s bar poll showed many of the candidates were highly unqualified and the choice was between two poor candidates. Who shall we vote for when 30, 40 and 50% of the lawyers find the candidates less than qualified?

Marshall Frank
Chuck D.

Your article continued our discussion at lunch. The Bar association is the “Bad lawyer protection society” and we have had to live with it for many years. The only problem I see with appointed judges is crony-ism by politicians. Anyway, I enjoyed your article.