By Yaël Ossowski | Florida Watchdog
TAMPA— Ceding to the hot temptations of democracy, three Florida judges will shed their traditional black robes for chance to enter the political boxing ring of merit retention elections this November, putting their records on the bench up for popular scrutiny at the ballot box.
The measure, adopted by a 1970s era amendment to the state Constitution approved by a statewide referendum, requires that justices appointed by the governor undergo an election on the merit of their time in office every six years.
The judges facing merit retention vote in 2012 are Justices R. Fred Lewis, Barbara Pariente and Peggy Quince, all members of the state Supreme Court.
For Sunshine State voters, the justices’ futures will be decided by a simple “yes” or “no” vote on the ballot beside each judge’s name.
“In 33 years, Florida voters have never rejected a merit retention candidate,” said Joseph Little, a professor at the University of Florida’s Levin College of Law.
Despite the historical consistency of a “yes” vote, there is a brewing storm of grassroots activists who have taken up the issue of merit retention as a popular campaign.
One group, Restore Justice 2012, was founded in August 2010 to combat the onslaught of “judicial activism,” according to its website. That activism, the group claims, has become “one of the greatest threats to freedom that exists in our country and state.”
“We have one of the most activist courts in the nation,” said Jesse Phillips, president of Restore Justice 2012, which he describes as a nonprofit group formed to educate voters about the retention election.
“We’re running a voter education program, and we very clearly have concerns,” Phillips told Florida Watchdog.
He points to examples such as 2010’s Amendment 9, the Florida Health Care Freedom Amendment, which would have allowed Florida voters the opportunity to vote on a constitutional amendment banning any federal requirement to purchase health care insurance.
The proposed amendment was drafted in response to the Patient Protection and Affordable Care Act, which was signed by President Barack Obama in March 2010, but it never saw the light of day because of the state Supreme Court.
“The health care freedom act is what initially got me concerned,” admitted Phillips. “They prevented us from voting on Amendment 9, when we had every right to vote on that amendment.
“Our state Constitution lays out the proper procedure for how referendums are supposed to work and they effectively ruled against it,” he said. “The court essentially answered for us, and that is what concerns us in this campaign.”
He also pointed to several controversial rulings in the past few years, including the Owens v. Publix decision, which ruled that slip-and-fall cases should place the burden of proof on business owners, a highly unpopular decision in the business community, as well as Bush v. Gore, which eventually reached the U.S. Supreme Court.
“They also threw out the school voucher program for parents, which would have allowed them to take their kids out of failing public schools,” said Phillips.
Despite the odds, there are many who are recognizing the grassroots strength of the “no” vote movement that could provide an upset come election time.
“It is possible that the right-leaning political activists have organized to defeat them,” Joseph Little admitted to Florida Watchdog.
And who is defending the judges, one may wonder?
That would be the newly formed Defend Justice from Politics, an organization of lawyers and residents who have lined up to decry the efforts of grassroots activists and groups such as Restore Justice 2012.
Elizabeth Hernandez, a former city attorney for the City of Coral Gables and chairman of the Miami-Dade County Ethics Commission Task Force, is a leader of the Defend Justice group.
She said that “extremist” activists are “hijacking the process” in an effort to “stack” the court in their favor.
“This calculated power grab and those seeking to stack the Supreme Court with political cronies hand-picked by Governor Scott must be exposed,” Hernandez wrote in an email to Florida Watchdog. “They want to ensure that the Court will be a rubber stamp for the partisan agendas of the other two branches of government.
“Defend Justice from Politics is committed to ensuring that the Florida Supreme Court is not politicized by politicians who want to replace fair and impartial Supreme Court justices dedicated to upholding the Constitution with appointees concerned about a political agenda.”
But there’s more to it as well.
“It’s a test of democracy,” said Stanley Tate, an 18-year member of the Judicial Qualifications Commission and another board member of Defend Justice from Politics.
“I am strongly in favor of allowing merit retention because it is an OK thing,” Tate said. “Judges should not be appointed based upon what someone wants them to do, whether they’re liberal or conservative.”
He voiced support for the Supreme Court justices on the ballot and preached a civil return to strict matters of law.
“The judiciary is the single most important branch of the government, as long as they make their decisions based upon the law. The systems works fine until people don’t like the manner in which decisions are reached because they’re not in their favor,” he said.
“I’ve been a Republican for 63 years. This has nothing to do with politics; it should only be about the law. If decisions are based on the law and you don’t like them, then change the law, don’t change the judge.”
Contact Yaël Ossowski at Yael@FloridaWatchdog.org. Follow him on Twitter @YaelOss.