TALLAHASSEE -- As the secretive campaign against the three Florida Supreme Court justices up for merit retention took shape Monday, one of the targeted justices warned that the future of the state’s independent judiciary was under threat.
"This is the most stressful time I’ve ever experienced in my life,’’ said Justice R. Fred Lewis at a meeting of the Hillsborough County Bar Association. “There is an entire branch of government to protect and defend. We cannot sacrifice fairness and impartiality and the court system to political whims."
Lewis’ remarks came three days after the Republican Party of Florida announced it will oppose him and Justices Barbara Pariente and Peggy Quince because of their "activist" and liberal views.
On Monday, Americans for Prosperity, the conservative advocacy group affiliated with the Koch brothers announced a political campaign they have been developing for months to highlight the judicial records of the justices. Starting Tuesday, the group will run television ads across the state chastising the justices for ruling against a 2010 proposed constitutional amendment intended by the Legislature to counter President Barack Obama’s Affordable Health Care Act — the one Republicans dubbed ObamaCare.
“We’re not advocating for the election or defeat of any of the justices what we’re attempting to do is call more attention to them advocating from the bench,’’ said Slade O’Brien, president of the Florida chapter of AFP.
Florida justices are not elected to office. They are screened by a panel of legal experts, and appointed by the governor. They come up for a merit retention vote every six years, with voters asked to decide if they remain qualified for office.
Lewis and Pariente were appointed by former Gov. Lawton Chiles and Quince was appointed jointly by Chiles and former Gov. Jeb Bush. Each has been retained by voters twice before.
Merit retention was not designed to be a referendum on their controversial decisions but, for months, the justices have been bracing for such an attack — modeled after a successful 2010 campaign in Iowa. Voters there ousted three Supreme Court justices for rejecting a legal flaw in a proposal to ban gay marriage. The Iowa justices blame their defeat on last-minute television ads and campaign tactics financed by out-of-state conservative groups.
Lewis said the announcement by the RPOF shifted what had been a whisper campaign against the three justices into a frontal assault on the judiciary.
"The idea was to vote out all three justices so Gov. [Rick] Scott could replace them,’’ he said.
He urged the Hillsborough lawyers to come to the defense of the merit retention system, put in place under former Gov. Reubin Askew. He had responded to a long history of abuse and corruption in the judiciary when justices were elected to office.
"If we allow politics to overtake the three branches of government, we no longer will have the democracy we’ve enjoyed for 200 years,’’ Lewis said. "I’m trusting that somewhere in the middle there are fair-minded individuals who believe the court system is too valuable to kill through partisan politics."
The unprecedented move by the Republican Party was roundly rebuked by lawyers and former Supreme Court justices on both sides of the aisle on Monday.
Former Supreme Court Justice Major B. Harding, who was appointed by Chiles and served for 11 years, warned that, after this election, all future decisions could be perceived to be tainted by politics.
“My concern is the potential this might have on the perception of fairness of the court in its decision making process,’’ he said.
Stanley Tate, the longest-serving member of the Judicial Qualification Commission and a prominent Republican, said he called RPOF Chairman Lenny Curry on Monday and urged him to rescind the vote.
“Any good attorney will tell you they want their judge to be a good attorney, not a good Republican,’’ he said. “I’m hoping the general public will disavow the decision by the Republican Party. I think they made a mistake,’’ he said.
Florida’s top elected Republicans, however, did not condemn or condone the decision. Gov. Scott, Attorney General Pam Bondi, House Speaker Will Weatherford and Senate President Don Gaetz each said they were not consulted by the party before the vote but would not say whether they supported it.
Lewis, Pariente and Quince have each been under fire from Republicans before, when they were on the prevailing side of the Bush v. Gore decision that was overturned by the U.S. Supreme Court. But each has also faced a merit retention vote in 2006 and survived. During that vote, the RPOF remained silent.
This time, the party pointed to a controversial 2003 opinion in which the Florida Supreme Court reversed a conviction for murderer Joe Elton Nixon and ordered a new case. The court held that because Nixon’s attorney said he was guilty without Nixon’s express consent that he should be given a new trial.
Lewis argued in his dissenting opinion that the court applied the wrong standard. The U.S. Supreme Court agreed with him, overturned the decision in 2004, applied the appropriate standard and the Florida Supreme Court agreed. Nixon was never released and remains on death row.
In its statement on Friday, the RPOF accused all three justices of voting in favor of it. Lewis chastised the party for getting its facts wrong.
The party’s executive committee either didn’t do its homework, or "it’s an attempt to force upon us an ideological opinion, damn the truth,’’ he said. "I don’t know whether to mock their incompetence or address the dishonesty. They say it, and it becomes fact."
Americans for Prosperity said that in addition to the ads to be aired in television markets of Tampa, St. Petersburg, Orlando, Jacksonville, Daytona Beach and Tallahassee on Tuesday and Wednesday, they will launch a website to provide voters with information on the justices’ records: youbethejudgefl.com.
The 30-second ad accuses the court of rejecting a constitutional amendment written by the Legislature that would serve as a referendum on the Affordable Care Act on the November ballot. The justices ruled that the non-binding amendment included a misleading summary because it made numerous promises such as ensuring “access to health care services without waiting lists.”
When the state acknowledged the summary was misleading, it asked the court to replace the text of the amendment in the summary. The court ruled it did not have the authority to do that.
Alex Villalobos, the former state senator from Miami and president of Democracy at Stake, a nonprofit advocacy group working to support the justices, called the ad misleading.
“They blame the court for the decision but where’s the commercial that blames the Legislature for having done it wrong in the first place?” he asked.
The Legislature subsequently rewrote the amendment and it will be one of several amendments on Florida’s lengthy November ballot.