By Noreen Marcus, FloridaBulldog.org
The midterm elections could transform the Florida Supreme Court, but probably won’t.
Next month voters can choose to evict up to five of the court’s seven justices. In theory, Floridians could respond to the court’s regressive designs by firing most of the designers.
They could do what the Sun Sentinel urged in an editorial last week: Remove Justices Charles Canady, Ricky Polston, Jamie Grosshans and John Couriel, all key players in the court’s “harsh new majority.” The newspaper recommends keeping moderate Justice Jorge Labarga, “whose principled but lonely dissents in high-profile cases have exposed the majority’s radical activism.”
Yet it will be astonishing if any of the four conservatives lose at the polls.In the 44 years that Florida voters have been empowered to retain or reject appellate judges, they’ve never once dropped a Supreme Court justice.
This campaign season, editorials in some major newspapers call for rejecting the four arch-conservative justices, arguing they’ve broken trust with the public. Traditional media aren’t as far-reaching and influential as they used to be, however.
Proven vote-getting techniques like splashy advertising productions, social media saturation and a vigorous ground game seem to be reserved for the many higher-profile campaigns in the run-up to Nov. 8. It’s hard to compete for airtime with Gov. Ron DeSantis versus Charlie Crist or Rep. Val Demings versus Sen. Marco Rubio.
LESS FOCUS ON JUDGES IN MIDTERMS
The consensus among progressives seems to be that investing in a judicial removal campaign would be counter-productive, Democratic political consultant Keith Donner said.
“I’m voting to retain,” he said. If voters dismissed any justices, “DeSantis would appoint even more radicalized ones.”
He noted that polls show DeSantis will probably win reelection. And even if Crist managed to beat him, Crist’s own history suggests he wouldn’t necessarily choose liberal justices.
In 2008 when then-Republican Crist was governor, he chose Canady, one of the conservatives on this midterm ballot. A former Republican lawmaker, Canady finished his term as chief justice in June and remains a leader of the majority bloc.
Voters pay scant attention to judicial elections, especially in a midterm, according to Christopher Daniels, a political science professor at Florida A&M University in Tallahassee. He blamed a failure of education compounded by bad timing.
“We kind of hurt ourselves because there’s so much effort toward getting out the vote in a presidential election year that people have become accustomed to that,” Daniels said. “They’re used to being constantly bombarded about going out and voting.”
“You can’t maintain that type of effort in a midterm year and that hurts the overall electoral situation,” he said.
‘YOU NEED TO PICK YOUR BATTLES’
Voters who are unfamiliar with the Supreme Court tend to skip past the judicial retention part of their ballots. That doesn’t impact the outcome because a justice needs only one vote more than 50 percent of the total retention vote to secure a six-year term.
“If there’s a concerted effort against one of the judges, either in the Supreme Court or the courts of appeal, they’ll get in the upper 60s [percent] instead of the mid-to-upper 70s,” said Democratic activist Larry Davis.
In other words, the most likely payoff isn’t worth the effort. ”It’s frustrating for those of us who care, but you need to pick your battles,” said Davis, a lawyer in Hollywood.
Whether and how much the public cares is anyone’s guess. The only polling on merit retention, which the Florida Bar conducts among its members, invariably shows that most lawyers support whoever’s on the bench at the moment.
A total of 5,738 lawyers responded to an August poll that included the five justices up for retention.
LAWYERS: LABARGA YES, BUT GROSSHANS?
Lawyers gave Labarga the highest marks, with 87 percent who have “considerable knowledge” supporting him. Polston had the next highest vote of confidence, 72 percent, and Grosshans had the lowest, 55 percent.
Labarga also had the smallest do-not-retain percentage, 13. Grosshans had the biggest, 45 percent, meaning that close to half of knowledgeable poll respondents wanted her gone.
In contrast, when the subject is the U.S. Supreme Court, the major pollsters constantly sample public opinion, often in partnership with big media outlets. Polls show that confidence in the nation’s highest court is historically low.
Only 47 percent of U.S. adults say they have “a great deal” or “a fair amount” of trust in the federal court system, Gallup.com reported on Sept. 29. That’s a seven-point drop since last year; in June the U.S. Supreme Court reversed Roe vs. Wade, the 50-year-old abortion privacy landmark, igniting a furious backlash.
Why there’s no comparable polling in Florida, another abortion law battlefield, “comes down to funding,” Daniels said. “Who’s gonna pay for people to go out there and do the polling and what interests would be served by knowing that information?
“It has to be funded by someone, so someone has to have an interest in getting this out to the public,” he said.
SON OF THE LAST ELECTED JUSTICE
Florida’s judicial framework, in which trial judges run for office and the governor appoints appellate judges subject to periodic voter review, was designed to shield upper-level jurists from politics.
But critics call merit retention a sham, just a way for appellate judges to claim bragging rights after meaningless votes. The critics say gubernatorial appointments are driven by patronage and DeSantis delegates all screening of judicial candidates to the ultra-conservative Federalist Society.
Lawyer Rick Karl, the Democratic candidate for state House District 29 in Central Florida, has a personal connection to the merit system. Karl’s late father Frederick Karl was the last elected Florida Supreme Court justice, in 1976.
Two years and a reform movement later, choosing appellate judges became an executive function. Independent nominating commissions were supposed to screen applicants and produce short lists of candidates for the governor’s final selection.
While a student at Florida State University, the younger Karl argued for a merit system in an article for a scholarly journal. He wrote about his father’s difficult run for the Supreme Court, when ethics rules kept him from talking about law.
Since then, Karl has become disillusioned with the merit system, he indicated in an interview.
“I don’t think it’s working the way it was intended to work, but the alternative is to go back to judicial elections and I can’t imagine that would be any better in this highly politicized environment,” Karl said.
TRIO FOUGHT ‘JUDICIAL ACTIVISM’ CHARGE
Judicial rejection campaigns are uncommon, though where there’s a will and enough money, activists find a way. Even then, success is elusive.
After the 2000 election of President George W. Bush, in which the Florida Supreme Court played a pivotal role, Donald Trump associate Roger Stone led a failed attempt to unseat Justices Harry Lee Anstead, Charles Wells and Leander Shaw.
Stone and former Palm Beach County commissioner Mary McCarty had formed the “Committee to Take Back Our Judiciary” to influence the court to rule for Bush in the 2000 ballot recount fight. They continued to use the committee to get rid of the three justices in the 2002 retention election; major funding came from a firm owned by Stone’s ex-wife Ann Stone, a conservative activist, in the form of a $150,000 loan.
The last time anyone took forceful steps to eject a Supreme Court justice was in 2012, when a group funded by the Koch family and other wealthy conservatives targeted three liberals: Barbara Pariente, Peggy Quince and Fred Lewis.
Even the Republican Party came out against them, a first for a “non-partisan” judicial race.
Opponents funded a sneaky ad campaign featuring woke-looking youths who tagged the justices as anti-libertarian. They referred obliquely to rulings conservatives hated – for example, the court had scrapped a ballot measure that could have sabotaged “Obamacare,” the Affordable Care Act.
The three justices joined forces and raised more than $1 million from the legal community. They disputed charges of “judicial activism,” criss-crossing the state to educate law schools and editorial boards.
PARIENTE’S SPOT-ON PREDICTION
The justices told the Orlando Sentinel editorial board that the smear campaign was part of then-Gov. Rick Scott’s plot to reshape the court in his own partisan image.
“I think it’s a smokescreen for the real issue, which is a political party wanting to control all three branches of government,” Pariente told the board.
The counterattack worked. The justices won retention with 67-68 percent of the vote.
But their mandatory retirement at the end of 2018 let incoming Gov. DeSantis finish the job of transforming the court from majority-liberal to supermajority-conservative.
Today, as Pariente foretold, Republicans dominate all three branches of Florida government.
Karl said the high court’s post-midterm agenda is obvious.
“I fully anticipate that the Florida Supreme Court will uphold the 15-week abortion ban,” he said, “and reverse the 1989 case [the In re: TW decision] that found our Florida constitutional right to privacy guarantees the right of a woman to make her own health care decisions.”