Any doubts about Florida Governor Rick Scott’s disdain for the judiciary were cleared up late last month when Scott took to national cable television airwaves to announce in a very public way that he had decided not to follow the U.S. Supreme Court’s healthcare ruling.
It’s a pretty safe assumption that Scott’s rebellion had little effect on the sleep pattern of United States Chief Justice John Roberts. Only death, retirement or infirmity stand in the way of the U.S. Supreme Court justices continuing their tenures on the bench well into the mid-21st century.
But for some current members of the Florida Supreme Court, Scott’s continued hostility toward the judiciary is cause for concern.
Last year, with the tacit approval of Scott, Republican Speaker of the House Dean Cannon tried to dilute the power of the Florida Supreme Court by splitting it into two divisions. He also proposed increasing the minimum percentages of “yes” votes required for justices to remain on the bench under the current judicial merit retention system.
Both the split and the vote-percentage increase attempts failed. But a right-wing Florida non-profit corporation named Restore Justice 2012 has popped up in Orlando with an agenda that would suit Scott just fine — a campaign to oust moderate Florida Supreme Court Justices Fred Lewis, Barbara Pariente and Peggy Quince in their upcoming November 2012 retention vote for what it terms their continual pattern of “judicial activism.”
The first attempt
In March of 2011, Dean Cannon unveiled his plan to add three additional justices to the Florida Supreme Court bench in order to allow for division of the Florida Supreme Court in two. His reasoning? The Florida Supreme Court was just too darn slow in handling death penalty cases. (A closer look shows that the governor’s office, not the Florida Supreme Court, is the current bottleneck on many open death penalty cases.)
Speaker Cannon believed the move was also necessary to handle the increasing deluge of cases related to Florida’s burgeoning housing crisis. The proposal was somewhat ironic, since Cannon, a self-proclaimed fiscal conservative, was proposing the further expansion of state government at the highest levels.
If there was any doubt about the underlying political reason Cannon was pushing for a court overhaul, the third prong of his overhaul laid bare his motive. Speaker Cannon proposed increasing the minimum percentages of "yes" votes required for justices to remain on the bench under the current judicial merit retention system from 50 to 60 percent. Those jurists who failed to garner 60 percent would be removed from the bench and a replacement would be appointed by, you guessed it, Governor Scott.
Why was this a big deal? A year before Cannon proposed his Florida Supreme Court Extreme Makeover Justice Edition, six judges on Florida’s First District Court of Appeals had survived retention. But if the threshold had been 60 percent, as Cannon was now proposing, all six would have been removed from the bench and Governor Scott would have been free to pick their replacements. In one vote, Scott would have been handed the ability to replace nearly half the judges that sit on what many Florida legal experts consider to be the state’s second most influential state court.
To put Cannon’s 60 percent vote threshold in better perspective, since 1900 only four U.S. presidents have managed to garner 60 percent of the popular vote – Warren Harding, Franklin Roosevelt, Lyndon Johnson, and Richard Nixon. After some preliminary hearings on the proposal, it became clear to the Florida Senate that Cannon’s proposal had little to do with court efficiency, and much to do with packing the top tiers of the state court system with Rick Scott ideologues. With little fanfare, the Florida Senate quickly filed Cannon’s 2011 plan in their circular file.
Merit selection & retention: A brief history
Judicial merit selection and retention in Florida is a relatively new concept, born in response to the judicial corruption scandals of the mid-1970s, the most prominent of which resulted in the resignation of two elected Florida Supreme justices, both caught doing favors for friends in active cases.
In 1976 Florida Governor Reuben Askew successfully convinced voters to approve a constitutional amendment that instituted a merit system, which required the governor to appoint members of the Florida Supreme Court, as well as the Florida District of Appeals Courts, from a slate of qualified candidates vetted by non-partisan judicial nominating committees organized through the Florida Bar. Those appointees, once on the bench, would then be subject to a retention vote every six years. To retain their spot on the bench a judge would need to receive 50 percent of the retention votes cast.
In the 36 years since merit retention became law in Florida, no judges have been turned out.
The Iowa blueprint
Could the Restore Justice 2012 campaign succeed? A similar movement in Iowa suggests that it could.
The tiny Midwest state has been known for many decades as the initial litmus test of presidential hopefuls. But in 2010 the state moved to the forefront of a different political battle. Its statewide Tea Party, with the help of nearly $1 million in donations from out-of-state conservative groups, successfully engineered a campaign that removed three Iowa Supreme Court justices, all of whom failed to garner 50 percent in Iowa’s 2010 retention vote.
The reason? A year earlier Iowa Chief Justice Marsha Ternus, Justices David Baker and Michael Streit had joined with four others on Iowa’s high court in issuing a unanimous 7-0 decision that declared same-sex unions constitutional in Iowa. The three defeated judges chose not to actively raise money or campaign prior to the 2010 vote.
The battle’s not over. The Tea Party and its out-of-state supporters are now going after another Iowa Supreme Court justice for his role in the 2009 same-sex marriage case. The difference? Targeted Justice David Wiggins recently told the Des Moines Register that, unlike his former colleagues, he plans to mount a vigorous campaign to retain his seat, declaring, “I’m not going to let them bully me.”
It’s too early to tell if Restore Justice 2012 and its affiliates will attract enough national money to have the same success as Iowa’s Tea Party in ousting offending justices. While it seems clear that the group is using the Iowa blueprint as a model, keeping tabs on Restore Justice is difficult. As a nonprofit issues-oriented organization, it’s governed by much less stringent reporting requirements than the campaign committees of Justices Lewis, Pariente and Quince, which are required to periodically disclose their donors to the public. A written request sent to the head of Restore Justice 2012 asking for a list of donors and amounts went unanswered.
Judicial activism: A Southern original
Restore Justice 2012 may be in its infancy as an organization, but its platform is neither new nor novel. The southern United States is not only the birthplace of jazz, Southern rock and Walmart… It is also arguably the birthplace of the term “judicial activism.” If you were raised in the South and have celebrated your 60th birthday in the past 10 years, you’re probably familiar with the term.
Judicial activism was a phrase popular among segregationists upset by the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education, the landmark decision that ordered the nationwide desegregation of public schools. Most discussions about “judicial activism” quickly evolved (or devolved) into a discussion about “States’ Rights” – and the need for the federal government to keep its nose out of each state’s business. Shortly after the Brown decision, an unsuccessful movement was launched to remove U.S. Chief Justice Earl Warren from the bench. The movement failed miserably, but not before billboards displaying “Impeach Earl Warren” dotted the shoulders of many Southern highways and byways.
The Restore Justice campaign against Justices Lewis, Pariente and Quince points to the 2000 Bush v. Gore case as evidence of “judicial activism.” You may remember that in Bush v. Gore, the Florida Supreme Court ruled in favor of recounting the votes in the Sunshine State, only to have the U.S. Supreme Court create new law under the 14th Amendment’s equal protection clause to reverse the Florida Supreme Court’s interpretation of its own state election laws. In short, the U.S. Supreme Court ordered that Florida stop counting votes and declare George Bush the winner.
One can only imagine the uproar if this scenario were to recur in the coming November election and the U.S. Supreme Court was forced to adopt its 2000 precedent and declare Barack Obama the winner in Florida — propelling him to a second term.
Obsessed with a "trifle"
On April 20, 2012, in the midst of conducting a morning hearing on one of the most contentious issues before the Court in recent years, the redrawing of election districts, the Florida Supreme Court took the unusual step of calling a recess. Had one of the justices fallen ill? Was there a security threat?
No. The recess was prompted by a flustered staffer who informed Justices Lewis, Pariente and Quince that their retention paperwork was due in the Florida Secretary of State’s office in less than two hours.
Almost immediately, one of the Tea Party darlings in the Florida House — Republican Scott Plakon of Longwood — fired off a letter to Governor Rick Scott calling for an investigation into whether the three justices were conducting campaign activities on the people’s dime, a first degree criminal misdemeanor under Florida Law. Representative Plakon points to the fact that court employees notarized the documents as evidence that the justices were working on their campaigns that Friday morning.
The attorney representing the three justices disputes that any laws were broken, but Governor Scott gladly picked up the phone and requested that the Florida Department of Law Enforcement investigate the incident.
The fun wasn’t over for the three absent-minded benchmates. On June 25, the Georgia-based Southeastern Legal Foundation filed suit in state court in Tallahassee demanding the removal of Justices Lewis, Pariente and Quince from the ballot for what it claims were fatal errors in their retention filings. The familiar-sounding central claim? The justices were using state employees to notarize their campaign paperwork. The Southeastern Legal Foundation counts among its major financial benefactors the deep-pocketed Scaife clan from Pennsylvania. In the 1990s, the foundation spent a good deal of its time and Richard Scaife’s money chasing after Bill Clinton.
On July 2 FDLE concluded its investigation and found that the three justices’ use of state employees for purposes of notarizing campaign documents did not rise to the level of “abuse of either (their) position or public resources.” The FDLE also pointed out that fellow sitting Justices Jorge Labarga, James Perry and Ricky Polston, as well as Chief Justice Charles Canady, all utilized state employees to notarize their 2010 campaign documents. Upon receiving the FDLE Report, veteran Leon County State Attorney Willie Meggs characterized the justices’ actions as a “trifle” and formally closed the investigation.
Nevertheless, Southeastern Legal has chosen to continue its quixotic legal battle, issuing a flurry of subpoenas on July 9 that appear calculated to ensnare nearly everyone at the Florida Supreme Court but the maintenance man. To date, 22 folks have received notice that they will be deposed by the Georgia-based foundation. Not surprisingly, Southeastern has chosen to ignore FDLE’s finding that conservative Chief Justice Charles Canady, along with other sitting justices, committed the identical “crime.” Don’t hold your breath for the foundation to amend its complaint to push for Canady’s removal from the bench.
Governor Scott also appears to have little faith in the capabilities of the Florida Department of Law Enforcement to conduct a legitimate investigation. Upon learning of FDLE’s findings, Scott refused to put the matter to bed, instead releasing a statement that he was now awaiting the results of Southeastern’s case.
Running on empty
Asking a Florida judge to “run” a re-election campaign is similar to asking a one-legged man to join a rear-kicking contest. Florida judges are prohibited from personally asking for campaign dollars; instead they must rely on others to do so.
Additionally, Florida law also prevents judges from providing their personal opinions on how they would rule on a particular set of facts. For that reason, most Florida voters would be hard pressed to name a single justice of the seven who sit on the Florida Supreme Court.
This translates into very low voter participation for retention votes. In the last major Florida election, the 2010 gubernatorial race in which Rick Scott edged then-CFO Alex Sink by 61,550 votes out of a total of 5,359,735 votes cast for governor, 869,693 fewer votes were cast in the retention vote for the most well-known Florida judge — former U.S. Congressman and current Florida Supreme Court Chief Justice Canady.
These traditionally low vote totals by the general electorate, coupled with the organized effort to oust Justices Lewis, Pariente and Quince, has their supporters scrambling. The lesson learned from Iowa was clear: Attempting to take the high road and not fighting back, as the three Iowa justices chose to do, will result in your certain defeat.
This lesson has not been lost on Justices Lewis, Pariente and Quince. Since the beginning of the year their surrogates have collectively raised a whopping $922,639.02. To date that amount dwarfs amounts raised for any other state-level campaign being run in Florida.
Money or not, don’t expect to learn anything definitive about the political leanings of Justices Lewis, Pariente, or Quince in their coming campaigns. Each justice will remain prohibited from presenting his or her positions on hot-button issues. Instead, voters should prepare for a raft of general biographical television and radio spots featuring each justice and their extended family. In other words, expect to know all their grandchildren by first name on Election Day.
Conservative counterpoints
Unlike a traditional presidential or gubernatorial race, where the lines are clearly drawn along party affiliation, the battle to retain the three targeted Florida justices has created some very strange bedfellows, including Barry Richard, the lead lawyer for George W. Bush in Bush v. Gore, as well as former members of the Florida Supreme Court, a number of whom were appointed by Republicans.
Somewhat surprisingly, the most outspoken among Florida’s high court alumni has been one of its more historically conservative jurists, former Justice Raoul Cantero. The first Hispanic to sit on the Court, Cantero was appointed in 2002 by the patron saint of Florida Republican politics, Jeb Bush. During his six years on the court Cantero was known as a reliable conservative vote.
Despite his track record, Cantero voiced his open opposition to the effort to oust Justices Lewis, Pariente and Quince in a March 22, 2012 email to the 93,000 members of the Florida Bar — making the case that the retention process should only be used to remove judges and justices for what he termed “malfeasance” in office.
Cantero is also helping one of the most liberal justices on the bench in a very direct way: He’s serving as co-chair of The Committee of Responsible Persons for the Merit Retention of Barbara J. Pariente, Justice Pariente’s reelection committee.
The question remains: Do ordinary voters, who don’t share a strong ideological bent with folks on the far left or far right, care enough to listen?
Justice Cantero artfully crystallized the inherent risk of using judicial merit retention votes as political weaponry with this warning in his email to the Florida Bar:
“If today we can remove a justice because we consider his decisions too liberal, perhaps tomorrow we can remove another because her views are too conservative. Neither approach is helpful to our democratic process or to respect for the judiciary.”
To pick up on Justice Cantero’s line of reasoning, Florida voters, including the Tea Partiers, must ask themselves: Would they still be gung-ho to hand the keys to the judiciary to Florida’s governor if that governor were not Rick Scott but, gasp, a Democrat?
This article appears in Jul 19-25, 2012.