Fla. Supreme Court justices fight back to retain seats
Florida’s Supreme Court justices have learned the art of brass knuckle politics as a merit retention fight heats up.
10/06/2012 6:17 PM
10/08/2012 7:50 AM
The host committee for the campaign fundraiser at the DoubleTree Hotel here in June included former Gov. Reubin Askew, five former Supreme Court justices and some of Florida’s most prominent lawyers and lobbyists.
But unlike most Tallahassee political gatherings, the beneficiaries were not politicians. They were three justices of the Florida Supreme Court: R. Fred Lewis, Barbara Pariente, and Peggy Quince, who each face yes or no votes in next month’s statewide merit retention election.
The justices have now rid their robes to play politics in response to what has become the most politically-charged merit retention election in state history. They are fighting for their judicial lives as they fend off attacks from several conservative groups who want them booted from the high court’s bench.
In Florida, tea party groups and the Republican Party of Florida are targeting justices, with one conservative group even financing television ads.
To combat the attacks, the justices have hired political consultants, created web sites and established political committees to raise money. Their supporters have raised at least $330,000 for each justice — more than most candidates running for the state House.
The once sleepy, non-partisan, merit retention campaigns are now expensive political battles.
“We had to speak out and educate, otherwise the attacks would go unanswered,’’ Quince explained to voters at a forum at Florida State University College of Law on Friday.
Unlike other politicians, who can defend themselves against criticism, the judicial canons in Florida prohibit justices from soliciting donations and they often cannot talk about the cases for which they are being condemned.
“It’s like having two hands tied behind your back and one leg,’’ said Pariente, a 15-year veteran of the court. “We’re not politicians. All we can promise to do is be fair and impartial.”
To do their talking and raise their money, the justices have created “Committees of Responsible Persons.” For the first time ever, a 527 — a tax-exempt political organization — has also been formed to run television ads in their defense.
Republican leaders say they are angry with what they contend are political rulings from the high court. In the last two years, the court has rejected several ballot amendments drafted by the Republican-led Legislature and overturned a handful of controversial laws. The successful ouster of the three justices would give Republican Gov. Rick Scott the opportunity to select replacements.
“This is a battle of ideas, a different world view,’’ said Lenny Curry, chairman of the Republican Party of Florida.
The party’s executive committee voted unanimously last month to oppose the justices after remaining silent in every merit retention election since the system was established in 1976.
“It is a reflection of frustration,’’ Curry said. “People want their voice to be heard and they feel like it hasn’t been heard for too many years.”
How many resources the party will devote to defeating the justices is still unknown. Curry said his focus is on the slate of Republican candidates, not on steering money into the merit retention campaign. But the party’s slate card will include a recommendation to voters to oppose Lewis, Pariente and Quince.
Other groups have announced that they, too, will actively push for the justices’ defeat. The conservative Americans For Prosperity has reserved a significant amount of time on television stations across the state, according to the Federal Communications Commission. It can use the time on ads for Romney and Republican U.S. Senate candidate Connie Mack, or run ads against the justices.
Another Tea Party-affiliated group, Restore Justice 2012, has been preparing a campaign against the justices and last week announced it also plans to run television ads.
Democratic Party chairman Rod Smith said that his party “will not take a position” in the merit retention race because, he said, politicizing the judiciary will weaken its independence.
But two unions, the Fraternal Order of Police and the Florida Professional Fire Fighters, announced they will work to support the justices as pushback to the GOP’s vote. And the political committee formed to support the justices, Defend Justice From Politics, plans to run television ads in Miami, Tampa and Orlando starting next week.
It all makes for the most politicized merit retention race since 1976, when voters approved a constitutional amendment to switch from electing high court justices to a merit retention and selection system.
The idea then was to take politics out of the judiciary after a series of scandals involving justices who were returning favors to campaign supporters. One justice abruptly retired after being caught on a junket to Las Vegas. Two justices were accused of fixing cases in lower courts and a fourth justice was charged with destroying evidence by shedding a document and flushing it down a toilet.
Supreme Court justices and appellate court judges are now required to go through a rigorous selection process to be appointed to the court and then, every six years, come before voters in non-partisan elections. They don’t have opponents but voters check yes or no whether they remain qualified to stay on the bench.
No justice has ever been rejected but another process, the Judicial Qualifications Commission, has removed corrupt judges.
That’s a sign that the judicial selection process is working, said Lewis, a 13-year veteran of the court. The merit retention system is a failsafe “if you get someone in office who is not performing as you thought they would, has become corrupt and is doing things they ought not be doing,” he said.
But the move toward turning judicial elections into ideological litmus tests will send Florida down a dangerous path, the justices warn.
“The merit selection and retention process was the remedy to remove the partisan political corruption that flows,’’ Lewis said at the FSU forum. “They are trying to remove the remedy to go back to the illness that plagued Florida.”
Quince worries that non-partisan county and circuit courts could be the next target of conservatives. “We believe in a system of fair and impartial judges not beholden to any political party,’’ she said.
Experts say the money flowing into judicial elections in Florida is part of a nationwide trend. Between 2000 and 2009, the cost of judicial elections more than doubled to $206 million in the 20 states that elect supreme court justices in partisan races, according to data kept by the Brennan Center for Justice, a left-leaning political advocacy group.
Spending on merit retention races have spiked since 2010, when justices in Iowa and Illinois faced steep opposition. In Illinois, business groups targeted Chief Justice Thomas Kilbride for voting to strike down a cap on damages in a medical malpractice case. He raised $2.5 million to fight back and won.
In Iowa, three justices took a different approach when targeted by social conservatives after they voted in a unanimous opinion to strike down the state’s ban on same sex marriage. The three judges chose not to raise money — and lost.
“Judges across the country looked at that race and learned a key lesson — if they become the subject of an anti-retention campaign, fight back,’’ said Adam Skaggs, senior counsel for the Brennan Center.
This is not the first time Florida’s justices have had to mount a campaign to keep their jobs. In 1990 and 1992, Justices Leander Shaw and Rosemary Barkett were targeted by conservatives and anti-abortion groups. Both raised nearly $300,000. Barkett’s campaign included television and radio ads. Both were re-elected with close to 60 percent of the vote.
Lewis, Pariente and Quince have been on the ballot twice before, in 2000 and 2006, and each time received between 67 and 71 percent of the vote.
Until now, they had never had to raise money or hire campaign consultants. They each loaned themselves $2,500 in 2000 and spent it on a public relations company.
This year, they didn’t want to take any chances when they saw what happened to Florida Justices Jorge Labarga and James E.C. Perry in 2010. Restore Justice, a conservative tea party-affiliated group, ran a low-budget, last minute campaign to oppose them and successfully lowered the number of votes they received.
Lewis said he has no regrets about fighting back.
“If our judicial officers do not care enough about our system of justice, to inform the public as to how it’s structured and why, then I’m not sure we deserve to be here,’’ he said. “If not us, then who?”
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