Columns

Florida's independent judiciary at stake

MARTIN DYCKMAN, Florida Voices
Published: October 4, 2012

This has become one of the most important elections in Florida's history, but many of those who vote for president or U.S. senator may overlook the campaigns that make it so.

I'm talking about the far-down-the-ballot questions concerning the retention of Supreme Court Justices R. Fred Lewis, Peggy Quince and Barbara Pariente.

They're now squarely in the crosshairs of that vast national right-wing conspiracy Hillary Clinton warned against years ago. Americans for Prosperity, a front organization for the ultra-right billionaire Koch brothers, has joined the Florida Republican Party's attacks on the justices. To preserve the fiction that it's not an electioneering organization, which would require it to disclose where its money comes from, the Koch propaganda machine isn't attacking the justices by name. But the message is the same: Florida has a problem with judges who "advocate from the bench."

That is a lie.

The Republican assault on the judiciary began two years ago when the court struck three of the legislature's constitutional amendments from the ballot because they were frauds on the voters.

It was the court's duty to do that.

In one of those cases -- the one that sticks the most in the Republicans' craw -- they conceded the legislature's ballot summary was misleading. So they asked the court to rewrite it -- in effect, to legislate from the bench -- by substituting the text of the amendment for the summary. Nothing in the Constitution or any law allows the court to do that, and it would have indeed been a case of judicial activism for the court to agree.

"What they're mad about is that these justices followed the law," says Alex Villalobos, a former state senator and a Republican, who is leading a campaign to defend the justices.

Speaking of advocating from the bench, never in legal history has there been a worse example than the U.S. Supreme Court's Citizens United decision in January 2010, which is responsible for the billions of dollars in corporate money that's now polluting the election process. But the right wing loves that decision, and has blocked every attempt to enlighten voters on who's giving the money. In Citizens United, the John Roberts majority simply reinvented the case to get the result it wanted.

But of course hypocrisy is the mother's milk of politics. At an event I attended recently, Villalobos cited another glaring example of it.

When House Speaker Dean Cannon was trying to pack the Florida Supreme Court two years ago by splitting it into criminal and civil divisions, his supporters argued that criminal cases were so important as to deserve the undivided attention of the most senior justices.

And who are those most senior justices? None other than Lewis, Quince and Pariente -- the same three whom the lynch mob now wants to remove from the court altogether.

Voters retained all three six years ago in the absence of any campaign against them. That was after the 2003 death penalty decision the Republican Party is now using against them.

So why were the Republicans silent then, but so active now? Why is the Florida judiciary of interest to Oklahoma oil billionaires? 

Their inspiration comes from the heavily funded national campaign that took out three Iowa justices two years ago. Iowa showed that it can be done, and so Florida is next in the crosshairs. This will happen everywhere there are Supreme Court justices who might uphold laws having to do with consumer protection, the environment, human rights, voter rights or anything else that offends the Kochs and their toadies.

Florida's present system of appointment and merit retention for appellate judges was established in 1976 because of some flagrantly unethical conduct at the Florida Supreme Court, all of which owed to politics. Florida's judicial nominating commissions were supposed to keep the politics out.

But since 2001, the commissions have come under the thumbs of the governors, who now appoint all the members, and so there is no longer any assurance that replacements for the three targeted justices would even be qualified, much less ethical and nonpolitical.

So the underlying issue in that down-ballot election is whether the right-wing conspiracy will capture the Florida judiciary and condemn it to a future of bias, mediocrity and, inevitably, scandal.

As Alexander Hamilton wrote in the Federalist, an independent judiciary is the public's last defense against a dictatorial executive or runaway legislature. Without it, he said, all constitutional rights would "amount to nothing."

That's what's at stake in Florida on November 6.

Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times.