'This Is Supposed To Be A Non-Partisan Race': Judges Face Republican Party, Super PAC Opposition

Sep 28, 2012

Media campaigns against three Florida Supreme Court justices are accusing them of making decisions based on political leanings. But, the judges’ supporters argue, it’s campaigns like that, not the judges, who are injecting politics into what’s supposed to be a non-partisan branch of government.

In 1998, former Florida governors, Democrat Lawton Chiles and Republican Jeb Bush, jointly appointed Justice Peggy Quince to the Florida Supreme Court.

After almost 14 years, Quince says, it’s been an honor to be the first African-American woman to ever serve on the state high court. But, she says, the honor comes with quite a heavy responsibility.

“Whatever decision this court makes will affect the millions of people that are in this state. So it’s a weighty job. It’s one that we do not take lightly," she said.

She says the seven judges must consider only three things when ruling: the facts of the case, the law and the state constitution. She says, because judges are impartial, they cannot take into consideration whether their rulings will make one group happy or another group unhappy.

“You may not always agree. But you can feel comfortable knowing that we did what a judge is required to do," she said.

Quince and fellow justices Barbara Pariente and Fred Lewis are up for merit retention this year. In Florida, appellate judges are appointed by the governor and then submitted for a popular vote every six years.

Author and former St. Petersburg Times reporter Martin Dyckman says, voters chose the current system in the mid-1970s.

“The short reason why we have merit selection and merit retention is that this court was riddled with corruption," he said, "and it was all because of the politics that went into the way they were selected.”

But TV ad campaigns against the justices and opposition from the Republican Party of Florida are bringing politics back into this year’s judicial-retention election. That’s according to longtime Republican state lawmaker Alex Villalobos. He founded a nonprofit research and advocacy group called Democracy at Stake to fight back against what he sees as special interest money corrupting the democratic process.

If the opposition campaigns are successful, he says, "a justice would have to think every time they have a case in front of them, ‘Gee, is the electric company going to put in $1 million against me? 'Cause I can’t raise $1 million.’ Or, ‘I better rule this way so that the Chamber, or whoever, doesn’t put in $1 million to take me out.’”

A political action committee funded by conservative billionaires, called Americans for Prosperity, is pumping money into a Florida ad campaign. The group’s TV ad urges voters to get rid of the three justices because their ruling kept an anti-healthcare-reform amendment off the ballot in 2010.

In part, the ad's voiceover says, "Our own Supreme Court denied our right to choose for ourselves. Shouldn’t our courts protect our rights to choose?"

The amendment would prevent Florida from passing laws requiring people to buy health insurance. What the ad doesn’t mention is that the Supreme Court didn’t strike down the amendment, but only ruled the Legislature’s summary of the amendment was too misleading to appear on the ballot. It also doesn’t mention that a clarified version of the amendment is on this year’s ballot.

Florida Bar President Gwynne Young says, outside money coming into Florida’s judicial race isn’t a surprise. A similar 2010 campaign is credited with the ouster of three Iowa justices who were seen as favoring same-sex marriage.

Young says, she’s afraid the only picture of the justices in voters’ minds could come from these biased ads.

“People don’t know these people," she said. "And they’re not allowed to campaign and state, 'This is how I would rule' or 'This is what I think personally' about a particular issue. You know, none of the things that people see in an ordinary, contested political election."

Young says, a survey of lawyers who have argued before the justices finds all three are favored for retention by at least 89 percent of the attorneys.

But last week, the Republican Party of Florida announced it was joining the conservative activists in opposition to the justices. Although the party did not respond to several interview requests, it released a statement accusing the judges of "judicial activism" and said “There is one egregious example that all Florida voters should bear in mind when they go to the polls on election day. These three justices voted to set aside the death penalty for a man convicted of tying a woman to a tree with jumper cables and setting her on fire." 

That was the 2003 case of John Elton Nixon, whose conviction the court overturned based on what it saw as ineffective counsel by his attorney. The U.S. Supreme Court later overturned their ruling, and Nixon remains on Florida’s death row.

The Republican Party did not explain why, when the justices were up for retention in 2006, it did not raise the same opposition.

And former state Sen. Villalobos says, many Republican candidates in tight races are not happy their party is getting involved now, not to mention diverting money and energy to oppose the judges' retention.

“The members that are running the races are not happy campers because this is supposed to be a non-partisan race. Plus, aren’t we always saying that we don’t want them to be political? Well, by a party getting involved, that’s as political as it gets," Villalobos said.

To remain on the Supreme Court, the justices must receive Yes votes from 50 percent plus one of voters. If they are not retained, Gov. Scott would appoint their replacements.