Supreme Court retention race becomes heated
Published: Friday, October 12, 2012 at 6:22 p.m.
Last Modified: Friday, October 12, 2012 at 6:22 p.m.
TALLAHASSEE — The organized opposition to the retention of three Florida Supreme Court justices has their supporters accusing the Republican Party of trying to take over the judiciary and rekindled memories of scandal and corruption that led to the elimination of partisan elections for the justices and appellate judges.
Justices R. Fred Lewis, Barbara Pariente and Peggy Quince would become the first justices or appellate judges removed since merit retention elections began in 1978 if they lose Nov. 6, but none has ever faced the kind of organization opposition that has emerged this year.
The state Republican Party's executive committee unanimously voted to oppose all three justices, marking the first time a Florida political party has taken a position in a retention race. Americans for Prosperity, a group formed by the conservative billionaire brothers Charles and David Koch, is running television ads against them and they've also drawn opposition from Restore Justice 2012, which grew out of a similar tea party-related organization that unsuccessfully campaigned against two justices in 2010.
Their opponents have labeled the three justices "activists" and cited a handful of rulings. The list includes decisions that removed from the 2010 ballot a constitutional amendment challenging President Barack Obama's health care overhaul, gave a new trial to a convicted killer and overturned Republican Gov. Jeb Bush's private school voucher program in 2006.
The state conceded the health care amendment's ballot summary was flawed and lawmakers this year put a revised version on the ballot without challenge.
"These judges at times have acted in an activist manner and a manner that is not consistent with our beliefs," said Florida Republican Party Chairman Lenny Curry. "It's not personal. It's about beliefs."
The justices and their supporters say merit retention elections should be based not on any specific rulings but on such factors as scholarship, demeanor, legal knowledge, integrity, judicial temperament, and impartiality.
Pariente said the opponents have cherry-picked from thousands of rulings but that the issue isn't any particular decision.
"This is about a group, a political party, that wants to take control over the third branch of government," Pariente said. "It's a smokescreen."
Lewis questioned the activist label.
"It seems in recent history it means 'I disagree with you.'" Lewis said.
If they are removed, Republican Gov. Rick Scott would appoint their replacements. If Amendment 5 on the same ballot passes, they would have to be confirmed by the Florida Senate. If not, Scott would pick from a list of candidates vetted by a nominating panel he appoints.
That has the justices' supporters, including some prominent Republican lawyers, saying the election is aimed at giving the GOP complete control of the state government and would eliminate judicial independence. In addition to the governorship, Republicans also hold all three elected Cabinet posts and solid majorities in the Florida House and Senate.
Democratic Gov. Lawton Chiles appointed Pariente and Lewis in 1997 and 1998, respectively. Quince was jointly appointed by Chiles and Bush, then governor-elect, also in 1998. The other four justices were appointed in 2008 and 2009 by then-Gov. Charlie Crist when he was still a Republican. He is now an independent.
Curry defended the party's involvement in the race, saying it's a matter of free speech. He called the accusations that Republicans are trying to control the judiciary "nonsense."
"This came from the grass roots. The idea that this about the elected officials of the Republican Party trying to control the judiciary is black helicopters swooping in. It's garbage," Curry said.
Until 1978, there were two ways to become a Supreme Court justice. First, win a partisan election just like for governor, senator or other office. If a justice needed to be replaced because of death, retirement or resignation, governors appointed the replacement unilaterally with no oversight from the Legislature or voters. That led to scandal.
Burton Young was president of the Florida Bar in 1970, when it urged Republican Gov. Claude Kirk not to appoint appellate Judge David McCain to a Supreme Court vacancy because of his history of legal improprieties and suspected criminal activities.
Kirk accused Young, a Democrat, of opposing McCain just because he was a Republican and reminded him he had the unfettered power to appoint anyone he wanted.
McCain and another justice, Hal Dekle, resigned in 1975 while both were under investigation by the Florida House for possible impeachment. McCain was accused of bribery and trying to influence other judges on behalf of campaign supporters. When he died in 1986, McCain was fugitive from justice, charged in a marijuana smuggling scheme.
The House was investigating Dekle for trying to influence a trial judge on behalf of a friend and writing a decision favorable to utilities based on a draft secretly slipped to him and Justice Joseph Boyd by a company lawyer. The House's investigative panel voted against impeaching Boyd, who testified he ripped the lawyer's proposed opinion into 17 equal parts and flushed them down a toilet in the Supreme Court building.
That scandal led to the passage of constitutional amendments abolishing partisan elections for the justices and appellate judges. Instead, they must appear on the ballot in merit retention elections two years after they are appointed by the governor and then every six years.
Young said that as bad as the judiciary was in the 1960s and 1970s before merit retention elections, he thinks it will be worse now if the justices lose.
"The message that goes out to every judge in the state of Florida is that you better obey mob rule rather than the rule of law," he said.
Curry said the GOP doesn't plan to divert any current contributions from other races to the merit retention election, but he said the accusations by the justices' supporters about its motives might make it use future contributions to campaign against the justices.
"Do they want to put us in a corner?" Curry asked. "Do they want to embolden us and make us redirect our energy and resources?"
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