Listen to opponents of term limits for judges: Where We Stand

February 15, 2017

Florida House Speaker Richard Corcoran recently wrote in a guest column for the Sentinel that it wasn’t surprising that judges weren’t “fans” of his proposal to impose term limits on the state’s Supreme Court and appellate courts. But last week, before his proposal cleared a House committee by a single vote, a more unlikely foe emerged.

The Florida Justice Reform Institute is dedicated to fighting “rampant litigation in Florida and the significant social and economic toll it takes on our state,” according to the mission page of its website. Yet its director, William Large, told committee members that the 12-year term limits Corcoran advocates would degrade the quality of applicants to the judiciary and, as a result, diminish the public’s confidence in the courts.  He argued talented lawyers would be less likely to interrupt their careers in private practice for a term-limited stint on the bench. “It will insure that the best and brightest rarely, if ever, apply,” Large said.

Criticism from the institute, which is otherwise a good fit with Corcoran’s conservative judicial philosophy, can’t be so easily dismissed by the speaker. After all, Large also echoed a regular refrain from Corcoran during the committee hearing when he called for judges “who can say what the law is, not what it should be.”

Other speakers also registered their opposition to the speaker’s proposal during the hearing, including former Republican Lt. Gov. Jeff Kottkamp, a lawyer who clerked for two federal judges and also represented Fort Myers in the House. Kottkamp argued that higher turnover among judges who are bound by term limits would unsettle the state’s legal landscape with more conflicting opinions.

Corcoran, in his guest column, cited Founding Father Thomas Jefferson’s criticism of lifetime appointments for federal judges. But Supreme Court justices and appellate judges in Florida aren’t given lifetime appointments. They must face voters in the first election after they are appointed by the governor, and every six years hence, and they lose their seats on the bench if they earn less than majority support. They are subject to a mandatory retirement age of 70.

State Rep. Jennifer Sullivan, the Mount Dora Republican sponsoring Corcoran’s proposal in the House, argued that justices and appellate judges aren’t accountable under the current system because none has been unseated by voters since Florida switched to appointing them in the 1970s. But that’s a good indication that the process used to screen judicial applicants —  a panel of lawyers and laymen that evaluates their qualifications before forwarding a short list of the best candidates for consideration to the governor — normally yields qualified judges.

And in those instances where sitting judges violate judicial rules of conduct, they face discipline from a commission and ultimately the state Supreme Court. Some appellate judges who ran into trouble this way and might have lost their seats during retention elections resigned before they had to face voters.

Sullivan declared during the committee hearing that Corcoran’s proposal “is about good government and accountability.” Actually, the opposite is true. It would treat good judges and bad judges the same. Both would be kicked off the bench after an arbitrary two-term limit. Voters would lose the power to extend the tenure of the best judges.

Corcoran’s proposal, if approved by three-fifths of legislators in both chambers, would go on the state ballot as a constitutional amendment in 2018. It would need approval of at least 60 percent of voters to be ratified. But as committee members were reminded by a representative of the Florida Bar, which represents all of the state’s lawyers, no other states impose term limits on their appellate judges. In three that proposed the idea – Colorado, Mississippi and Nevada – voters said no.

Even if legislators aren’t inclined to listen to opposition from judges to term limits, they would be wise to give weight to the objections of other knowledgeable observers of the court system, including critics of Florida’s judiciary. The issue is not really that complicated. Regularly purging the ranks of justices and appellate judges in Florida of their most experienced and knowledgeable members is just a bad idea.

This editorial has been updated to correct the name of the Florida Justice Reform Institute.

http://www.orlandosentinel.com/opinion/os-ed-term-limits-judges-20170215-story.html