Odor in the Court

By state law, judges get elected just like politicians -- a system so idiotic it's criminal. Will somebody please reproach the bench?

Of course most of the public couldn't care less about judicial elections. Of Dade's nearly two million residents, fewer than one-third are registered voters. Of these, only a fraction (100,000 to 200,000, according to recent election returns) cast votes in judicial elections. Most voters wouldn't know of the elections at all, were it not for the crop of signs that infests the county's vacant lots every two years.

A consultant's primary job is not to consult with the candidate regarding issues (what issues?) or to deal with the media (what media?), but to consult with other consultants in the hope of ensuring that his own candidates avoid drawing opponents.

This is facilitated by the dearth of lawyers willing to subject themselves to the embarrassment and expense of an election. This year, for instance, only 17 of 47 judicial seats are being contested. The other 30 candidates, most of whom are incumbents, got a free ride.

Consultants spent the weeks preceding the July 22 filing deadline lobbying potential opponents not to run against their clients. The lobbying reaches fever pitch on the final day, when dozens of candidates and handlers jam the election offices here and in Tallahassee, hoping to intercept last-second challengers and cajole them into other races.

Leverage usually has nothing to do with judicial abilities or endorsements. More likely it involves a candidate's name (is it short, sweet, and ethnically identifiable?), gender (women have thumped men in 24 of 26 recent head-to-head races), and fundraising abilities (can they fill the war chest?).

"Money's the number-one factor," declares Phil Hamersmith, a top consultant. "These candidates run around to all these events crowing about how they got the Kendall Federation's endorsement. It's all a bunch of crap. There's only one way to win an election in a county this size: money." Hamersmith charges $20,000 for a judicial race and tells clients they'll need $150,000 to run a "modern" campaign (meaning one based on polling and geared to TV ads and direct-mail flyers). That figure is now widely accepted, and often exceeded. Circuit Judge Amy Steele Donner, for instance, spent more than $500,000 in her 1984 race against Fran Farina. Farina dished out several hundred thousand.

And how do candidates raise the money? They get most of it from fellow lawyers. Sitting judges enjoy a clear advantage in this arena A they can solicit funds directly from lawyers who appear before them.

A conflict of interest? You betcha!
Alan Dimond, a Greenberg Traurig attorney and past president of the Florida Bar, calls the system "inherently corrupt. It's not that justice is bought and sold, but there are nuances."

"It's obviously a conflict," Hamersmith echoes. "Part of the reason lawyers give money to a judge is because they believe that someday down the road they're going to come into that judge's courtroom with a $15 million case and end up getting a better judgment, or at least get treated in a way that makes them look better for their clients."

Many lawyers insist they make contributions only in the interests of keeping able jurists on the bench. Yet every year even the most incompetent judges receive fat contributions.

For candidates who are desperate for any kind of edge and who have no substantive issues or ideologies to debate, the forum is an invitation to nastiness. But because it is considered declasse for candidates to whack at each other directly, consultants generally serve as the designated hitmen. Some hire investigative agencies to dig for dirt about the enemy. Others pitch smear stories to the media. If this fails they simply take out attack ads.

"My guy really hates to go negative," explains Bob Levy, a prominent handler. "But he's getting blasted in the Herald." By "negative," Levy means that his guy, a South Dade lawyer named Gary Canner, will start running attack ads against Ralph Person, the respected black judge who is under investigation by several agencies for accepting loans from lawyers to whom he later awarded casework.

"What's the difference between a bribe and a loan anyway, if you don't repay it?" Levy scoffs. "Nothing." When it comes to financial chicanery, Levy is qualified to comment. He served more than two years in federal prison in the early 1970s for economic crimes.

Appropriately, most handlers are themselves in a constant state of war. Veteran flack Gerald Schwartz is forever reminding whoever will listen that Bob Levy is an ex-con. Several years ago, he sued Hamersmith for defamation of character after Hamersmith was quoted in the newspaper expressing his fervent hope that Schwartz would suffer "his third and final heart attack."

There is one topic upon which all the consultants concur: Judicial elections should be scrapped.

"The silliest system in politics," Hamersmith declares.
"An outrage," seconds Bob Levy.
Even Schwartz, once the staunchest defender of the procedure, concedes the elections are "a demeaning process that has become nauseating."

These opinions come from those who stand to benefit most from judicial elections. They are mild in comparison to the views held by most judges and lawyers.

So why do we elect judges in the first place?
The framers of the Constitution never intended that judges be subjected to the vagaries of politics. They established a process of lifetime appointment based on merit that specifically isolates judges from outside influence, a system still used in the federal judiciary. Judicial elections at the state level came into vogue with Andrew Jackson, whose populist notions bred the widespread belief that all public officials should be subject to the will of the electorate. Beginning in the 1830s, states adopted the elective model.

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