Government gets its power from the consent of the governed. The Founding Fathers created three branches of government, including the judiciary, which they believed served a limited role as a check on the legislative and executive branches, not as a lawmaking body.
Florida adopted a similar system, with the Supreme Court as the highest court. In 1976, the state constitution was amended by voters to create a “merit retention” system for appellate judges. Merit retention judicial elections are superior to an appointment system, where judges cannot be easily removed. It is superior because it allows voters to assess the judges every six years, as in the Nov. 6 election’s question on whether to retain Justices Lewis, Pariente and Quince.
Voters have the right to judge the judges. When judges are found wanting, they should get the boot. This process allows everyone the right to free political speech, including the judges and their critics. And yet, no Florida Supreme Court justice has ever been kicked off the bench in merit retention. If ever there was a year for history to be made, this was it.
It has been common knowledge among conservatives in Florida for years that these three Florida Supremes have pushed “progressive” or “activist” agendas in some of their decisions. The belief was that these justices had overstepped their role and lost their neutrality. As a result, some groups made it a mission in the last election to oppose their retention and advocate their removal.
But any serious observer of politics knew this effort was not going to work, especially when it became clear that plaintiff trial lawyers and liberals were spending almost $5 million to retain the justices. They spent well over 20 times more than the groups who wanted to remove the judges.
There are two interesting points to be made. The first was the curious behavior and anger of the three justices themselves, who charged that any serious attempt to remove them had to be an effort to “inject politics” and an inappropriate “politicization of the bench.” Their misleading accusation was: If you don’t support us, you’re playing politics.
The mainstream media chimed in, of course. One Florida newspaper claimed “the future of Florida courts as politics-free zones” was in jeopardy and stated that the fact that judges’ races are nonpartisan “insulates them and their rulings from politics.” Those statements belong on the comic pages, and if you believe such tripe, I have a bridge to sell you.
The Florida Supreme Court is up to its eyeballs in politics. Justices are appointed by politicians. It’s routine for them to decide political cases. There is an extended list of cases where these three judges injected their personal political views into their decisions. The court was playing politics when it invalidated three constitutional amendments passed by the Florida Legislature in 2010. These three justices personally collected over $1 million in political cash for their last election. For proof that the election of these three justices is highly partisan, look no further than who voted for them and who voted against them.
There is nothing “wrong” with any of that. What is wrong with this picture is that the justices painted themselves as “above politics” when in fact they were enmeshed in it up to their black-robed necks. If court justices choose to jump into the political bullring like they’ve done over the years, they can’t complain when the bull lowers its horns and takes aim.
The other interesting point is the real, underlying reason why some groups may have mounted a challenge against retaining the justices. I believe the leaders of these groups are too smart to think they could win by spending such a piddling amount of money. But they succeeded in making trial lawyers cough up $5 million of their own money to “save” the justices. That $5 million would have or could have been spent by these same trial lawyers on other races. But it wasn’t. Maybe the groups that opposed retaining these justices are dumb like a fox.