This November, the names of three Florida Supreme Court justices will be on every ballot in the state. Voters will decide whether they should be retained in office.
Under Florida’s Constitution, appellate judges are not elected. Rather, judges and lawyers who aspire to serve on an appellate court are chosen through a serious and thorough selection process based on merit. They apply to a nine-member judicial nominating commission. The application process includes an investigation by the Florida Department of Law Enforcement and requires applicants to answer detailed questions about their personal and professional backgrounds.
The nominating commissions must review the applications and submit to the governor a short list of three to six highly qualified applicants. The governor then appoints from that list. Every six years, those appointed judges go before the voters, who decide whether they should be retained in office.
All three justices on the ballot this year were selected and appointed under this merit system and have previously been approved by Florida voters in retention elections. And this year, a Florida Bar poll of its lawyer members found overwhelming support for retaining each of them.
The appointment and retention of appellate judges began in 1976 in reaction to scandals during that period that rocked the judiciary. The changes were specifically designed to eliminate partisan politics from that branch of government, as the federal constitution is designed to do.
In the U.S. Constitution our Founding Fathers provided for a judiciary free from partisan political influence because they were concerned about how, in England, the king controlled the judges. Alexander Hamilton, one of the country’s Founding Fathers, believed that having judicial elections would irreparably harm the fairness and impartiality of the courts. Florida’s merit selection and retention process honors both those concerns.
As Hamilton noted in The Federalist Papers, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” In arguing for lifetime appointment of federal judges, Hamilton noted that it was “certainly one of the most valuable of the modern improvements in the practice of government” and that it was an “excellent barrier to the encroachments and oppressions of the representative body.”
Recently, the Republican Party of Florida advocated for just such an encroachment. It issued an unprecedented statement formally opposing the justices’ retention. Its justification for opposing the justices lies in a single case, Nixon v. State, in which the Florida Supreme Court ordered a new trial (but did not order freed) a criminal defendant who had been convicted of murder and sentenced to death. The defendant’s lawyer had conceded the defendant’s guilt to the jury without the defendant’s consent. The United States Supreme Court reversed that decision, but only because it believed that the Florida Supreme Court had applied the wrong legal standard. In reviewing the case again, the Florida Supreme Court affirmed the sentence.
What the RPOF does not say in its statement is that the Florida Supreme Court, including the three justices subject to merit retention, consistently upholds the death penalty in the overwhelming number of cases considered, and that the Court has been reversed by the United States Supreme Court as much for affirming death sentences as for reversing them. In both such instances, U.S. Supreme Court reversals are exceedingly rare.
But the justices’ votes in one case, or even a few cases, should not be relevant to their retention. Both Republican and Democratic leaders have at times been unhappy with some of the court’s decisions. That is the nature of judicial decisions.
The entire point of a fair and impartial judiciary is that its decisions will not be influenced by outside forces such as campaign donations or political pressure. In the past, even party leaders who disagreed with a court’s decision understood the vital importance of a fair and impartial judiciary.
The RPOF’s recent unprecedented attempt to politicize the judiciary — and to remove three Supreme Court justices based only on disagreement with one (or even a few) decisions — undermines the purpose of the merit selection and retention process, which is precisely to remove partisan politics from the judiciary. As former justices of the Florida Supreme Court, we hope that such partisan actions will not succeed in depriving Florida citizens of the fair and unbiased judges that our merit system is intended to provide.
Harry Lee Anstead served on the Florida Supreme Court from 1994-2009; Raoul G. Cantero, 2002-2008; Arthur J. England, Jr., 1975-1981; Stephen H. Grimes, 1987-1997; Major B. Harding, 1991-2002; Ben F. Overton, 1974-1999.