Florida Merit Retention — What Changed Between 2000, 2006 and 2012? Nothing.

Justices Barbara Pariente, Fred Lewis, and Peggy Quince were all appointed to the Florida Supreme Court in the late 1990s.  According to timeframes established in the Florida Constitution, each of them has stood for merit retention in 2000 and 2006, and each of them will do so again in 2012.

In 2000, Justice Pariente received a “YES” vote for her retention from 71.8% of the electorate, Justice Lewis received a “YES” vote from 71.5%, and Justice Quince received a “YES” vote from 71.7%.  In 2006, their “YES” votes were 67.6%, 67.1%, and 68.2%, respectively.  In short, the people of Florida have overwhelmingly approved Justices Pariente, Lewis, and Quince – twice.  Yet, in 2012, a number of groups, now including the Republican Party of Florida, have publicly advocated removing these three justices from the Florida Supreme Court.

So what has changed since 2006?  Have these justices lost all of the legal skills that got them to the Florida Supreme Court in the first place?  Have they stopped working hard, deciding to coast through their final years on the court?  Have they been implicated in some sort of unprofessional or unethical conduct?  The answer is NO, NO, and NO.  The intelligence, work ethic, and fine moral character of each of these justices remain fully intact.  In fact, they seem to have gotten better over time.

The Florida Bar conducts surveys of its membership for their positions on merit retention.  Lawyers ought to have the best sense of whether a judge or justice is qualified for his or her position.  The poll includes lawyers from all parts of the state, from all types of legal practice, and from all political and ideological persuasions.  In the Florida Bar survey conducted in 2000, 84 percent of Florida lawyers supported retention of Justice Pariente, 88 percent supported retention of Justice Lewis, and 83 percent supported retention of Justice Quince.  By 2012, the levels of support from Florida’s lawyers had increased to 89, 92, and 90 percent.

What has changed is not the justices but the political landscape.  In 2010, Republican state legislators sponsored proposed Amendment 9 to the Florida Constitution, which would have barred any law requiring people to obtain health insurance, such as Obamacare.  But the legislators failed to write a clear and concise ballot summary for Amendment 9.  By a 5-2 vote, the Florida Supreme Court, affirming the ruling of a trial court, held that the ballot summary did not comply with Florida law.  The legislators did not correct their error before November, so Amendment 9 was not on the ballot in 2010 (although a revised version will be on the ballot this November as Amendment 1).

Tea Party activist Jesse Phillips launched a campaign of retaliation against the five justices who held the ballot summary invalid.  His organization, “Restore Justice 2012,” has been raising money throughout the state for two years.

Mr. Phillips’ effort has been aided by out-of-state political action committee (PAC) money.  The Super PAC “Americans for Prosperity,” founded by ultraconservative billionaire oil barons David and Charles Koch, has paid for television commercials attacking Justices Pariente, Lewis, and Quince.  Groups like “Americans for Prosperity” are emboldened by the results of the 2010 Iowa merit retention elections.  There, five out-of-state PACs spent nearly $1 million to unseat three Iowa Supreme Court justices as payback for a decision permitting same-sex marriage.  It was the first time that so much money had been spent on a merit retention election – and the first time that an Iowa Supreme Court justice had not been retained by the voters.  In the post-Citizens United world, these out-of-state groups can spend unlimited funds trying to influence the outcome of our Florida elections.

The Republican Party of Florida recently announced its opposition to the retention of Justices Pariente, Lewis, and Quince, thus removing any doubt that this unprecedented attack is all about politics.

If the justices are removed from office, Republican Governor Rick Scott will get to choose their replacements.  In one fell swoop, Governor Scott would select nearly half of the Florida Supreme Court’s seven justices.  That is a fact that you will never hear in the slick TV ads paid for by “American for Prosperity,” or the internet videos produced by “Restore Justice 2012.”  And it explains why three qualified Florida Supreme Court justices, who have been approved by Florida voters twice before, and who are supported by 90% of Florida lawyers, are facing a multi-million dollar campaign to remove them from office.