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Florida's New Battleground: The State Supreme Court

Nov 6, 2012
Originally published on November 6, 2012 12:18 pm

In Florida, Supreme Court justices are nominated by a commission and appointed by the governor. Every six years, they're up for retention. Voters decide whether to keep them on the bench or let them go.

Since the system was put in place in the 1970s, retention votes have been pro forma affairs, with justices doing little fundraising or campaigning.

But this year is different.

One ad, paid for by Americans for Prosperity, a national political action group founded by conservative billionaire David Koch, touched off a campaign by conservative activists who set their sights on reshaping one of the state's most powerful bodies.

A New Battleground

The ad criticizes the justices for blocking a 2010 initiative that opposed Obamacare. It was one of several decisions by the court in recent years that have angered conservatives.

"Shouldn't our courts be above politics?" the ad asks.

Fred Lewis, one of three Supreme Court justices up for retention, says conservative groups are injecting politics into a judiciary that's intended to be nonpartisan and independent.

"When you turn a judicial process into a popularity contest, then you have judges of whatever level looking over their shoulders before they make a decision," Lewis says. "And that's not the way this democracy is going to remain."

In response, the three justices have begun active campaigns of their own.

Supreme Court Justice Barbara Pariente, also up for retention, criticized David Koch and Americans for Prosperity at a meeting with the editorial board of the Orlando Sentinel.

"We now have an out-of-state group wading into the Florida judicial system," Pariente told Sentinel editors. "That should be for any Floridian a wake-up call that our judicial branch is under attack"

Faced with attacks by Americans for Prosperity and other groups, this year the three justices have collectively raised more than a million dollars.

In addition, the state Bar Association and many in Florida's legal community have rallied to support the justices.

Defend Justice from Politics, a group formed to support the justices' retention, fought back with an ad of its own challenging the politicization of the retention vote.

"Newspapers call it a power grab, political intimidation and a hijack of our justice system," the ad says. "Want to stop the politicians from trying to take over the Supreme Court? Then stand up for our justices."

Republicans Split Over Campaign

Ratcheting up the pressure on the justices recently, Florida's Republican Party also announced it is opposing their retention.

It's the first time the Florida GOP has ever taken a stand opposing a sitting justice. The head of the state party, Lenny Curry, rejects charges that Republicans are playing politics with the state's highest court.

"They're on the ballot. This is the law right now," Curry says. "And if our critics don't like the law, then they ought to try to change the law. If they don't think judges should be up for a do-not-retain vote, then work to change the law."

Curry says the proposal came from the party's grassroots — Republican activists around the state who have been unhappy with recent court decisions.

Paula Dockery, a Republican state senator, says she doubts that. Dockery is one of several prominent Republicans critical of her party's decision to work to unseat the justices.

She notes that much of the money for Americans for Prosperity comes from outside Florida.

"What do out-of-state interests care about the Florida Supreme Court justices? So, it leads one to believe that this is a test run for their attempts to do this in other states," Dockery says.

The battle over judicial retention in Florida comes two years after conservatives won a similar fight in Iowa — ousting three members of the state Supreme Court who ruled in favor of same-sex marriage. This year, as in Florida, conservatives are working in Iowa to reshape the state's highest court — opposing retention for a fourth Supreme Court justice.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, HOST:

In Florida, an election battle is being waged over the state's Supreme Court. Three Florida Supreme Court justices are on the ballot to decide if they will be retained. Typically, those judicial retention votes generate little public interest. This year, though, the Republican Party in Florida - and outside political groups - have targeted the three justices for defeat. From Miami, NPR's Greg Allen reports.

GREG ALLEN, BYLINE: In Florida, Supreme Court justices are nominated by a commission and appointed by the governor. Every six years, they're up for retention. Voters decide whether to keep them on the bench or let them go. Since the system was put in place in the 1970s, retention votes have been pro forma affairs, with justices doing little fundraising or campaigning. But this year is different.

(SOUNDBITE OF ADVERTISEMENT)

UNIDENTIFIED WOMAN: But then the Florida Supreme Court removed the amendment from the ballot, denying us a voice and a vote on the historically important issues. Shouldn't our courts be above politics and...

ALLEN: That ad was paid for by Americans for Prosperity, a national political action group founded by conservative billionaire David Koch. It sent a signal that conservative activists have set their sights on reshaping one of the state's most powerful government bodies - the Supreme Court.

The ad criticizes the justices for blocking a 2010 initiative that opposed Obamacare. It was one of several decisions by the court in recent years that have angered conservatives.

Fred Lewis, one of three Supreme Court justices up for retention, says conservative groups are injecting politics into a judiciary that's intended to be nonpartisan and independent.

JUSTICE FRED LEWIS: When you turn a judicial process into a popularity contest, then you have judges of whatever level looking over their shoulders before they make a decision. And that's not the way this democracy is going to remain.

ALLEN: In response, the three justices have begun active campaigns of their own. Here's Supreme Court Justice Barbara Pariente at a meeting with the editorial board of the Orlando Sentinel talking about David Koch and Americans for Prosperity.

JUSTICE BARBARA PARIENTE: We now have an out-of-state group wading into the Florida judicial system. And that should be for any Floridian a wake-up call that our judicial branch is under attack.

ALLEN: Faced with attacks by Americans for Prosperity and other groups, this year the three justices have collectively raised more than a million dollars. In addition, the state bar association and many in Florida's legal community have rallied around to support the judges.

Ratcheting up the pressure on the judges recently, Florida's Republican Party also announced it's opposing their retention. It's the first time the Florida GOP has ever taken a stand opposing a sitting justice. But the head of the state party, Lenny Curry, rejects charges that Republicans are playing politics with the state's highest court.

LENNY CURRY: They're on the ballot. This is the law right now. And if our critics don't like the law, then they ought to try to change the law. If they don't think judges should be up for a do-not-retain vote, then work to change the law.

ALLEN: Curry says the proposal came from the party's grassroots - Republican activists around the state who've been unhappy with recent court decisions. Paula Dockery says she doubts that. Dockery is a state senator, one of several prominent Republicans critical of her party's decision to work to unseat the justices. She notes that much of the money for Americans for Prosperity comes from outside of Florida.

STATE SENATOR PAULA DOCKERY: What do out-of-state interests care about the Florida Supreme Court justices? So, it leads one to believe that this is a test run for their attempts to do this in other states.

ALLEN: The battle over judicial retention in Florida comes two years after conservatives won a similar fight in Iowa, ousting three members of the state Supreme Court who ruled in favor of same-sex marriage. This year, as in Florida, conservatives are working in Iowa to reshape the state's highest court, opposing retention for a fourth Supreme Court justice.

Greg Allen, NPR News, Miami.

(SOUNDBITE OF MUSIC)

MONTAGNE: This is NPR News. Transcript provided by NPR, Copyright NPR.