Commentary Law and Policy

Florida Supreme Court Battle Could Set Dangerous Political Precedent

Jessica Mason Pieklo

Increasingly conservatives are targeting state court elections as a way to advance their anti-equality agenda.

When it works, our judiciary system is the final gatekeeper between citizens and state power run amok. And while the judicial branch has had its own history of scandal and political patronage, its largely stayed out of partisan electoral politics. But now that’s all changing.

The latest evidence of the blurring line between partisan electoral politics and our courts comes courtesy of Florida where conservatives in the state are making a play for the state’s high court.

As the Orlando Sentinel first reported, the state Republican party voted to oppose the retention of Supreme Court Justices Fred Lewis, Barbara Pariente and Peggy Quince. All three were appointed by Democratic former Governor Lawton Chiles and all three ruled in 2010 to remove from Florida’s ballot a non-binding amendment that would have allowed Floridians to refuse to buy mandatory health insurance in opposition to Obamacare.

In Florida, judges are appointed by the governor then face a “merit retention” vote every six years. Florida hasn’t removed a justice from the court in 40 years since adopting this system of judicial appointment. The decision to remove a sitting justice is normally based on misconduct or incompetence. But here it’s being driven on partisan disagreement.

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Normally judicial elections are low-campaigning, low-money affairs, but not any more.  A conservative group founded by the Koch brothers is the funding the Florida campaign against the justices, just like they did in Iowa during the 2010 election. There, conservatives backed by the Koch brothers launched a campaign against three justices who ruled in favor of same sex marriage in the state. A fourth Iowa justice who also ruled in favor of same sex marriage is being targeted this election.

Should conservatives succeed in ousting these judges in Florida the results would be significant and long-lasting. Most immediately, Gov. Rick Scott would have the opportunity to appoint three justices to the seven justice bench and with it drive the court even harder to the right. Long-term the success of these kinds of campaigns present serious problems for our judiciary. In Iowa outside groups like those funded by the Koch brothers spent almost $700,000 to unseat those three justices. In 2010 a little more than $12 million was spent nationally on TV ad time in state supreme court elections. That means that judges now have to raise funds, an activity that can call into question impartiality, a key component of judicial ethics.

The more our judicial candidates are forced to campaign, the more beholden they will be to their political donors, or at least that will be the unavoidable conclusion many in the public will draw. And when the public loses faith in the impartiality of the judiciary then the system of checks and balances really does crumble away.

Judicial appointments have always existed in tension with partisan politics; the judicial branch is supposed to be non-partisan but it is unavoidable that governors and presidents appoint justices in line with their political beliefs in addition to the particular skill and experience of the candidate. But there’s a difference between our judges existing as creatures of politics versus partisan candidates, and the campaigns in Iowa and Florida are threatening that distinction in very real and very dangerous ways.

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