The least understood portion of the November ballot may be the section asking voters whether three Florida Supreme Court justices and other appellate judges should keep their jobs. The justices, the Florida Bar and other groups are embarking on public education campaigns, and with good reason. The merit retention system is designed to preserve the judiciary branch's independence and protect it from corruption and political influence, and the Republican Party of Florida and a conservative interest group unhappy with the Supreme Court's opinions are trying to pierce those protections.
Justices R. Fred Lewis, Barbara J. Pariente and Peggy A. Quince are not running against each other. Their names do not appear on the ballot because they have done anything wrong. And the merit retention process is not a referendum on whether voters agree with the court's opinions. Merit retention provides an opportunity for voters to review whether the justices act professionally, independently and impartially in applying the law.
Yet the campaign by the misnamed Restore Justice 2012 group seeks to oust the justices because it disagrees with some of the court's opinions. The state Republican Party injected unprecedented political pressure into the mix late Friday by announcing that it opposes the retention of the three justices. This is just the latest in a growing special-interest movement nationwide aimed at intimidating the courts. Until now, much of the effort has centered in states where judges are directly elected to appellate courts — a system Florida wisely reformed in 1976 after an extraordinary, politically influenced scandal at the state Supreme Court.
In Florida, justices to the Supreme Court and judges to the appellate courts are appointed by the governor. New justices face a first merit retention vote in the first general election that occurs more than one year after their appointment, and then every six years after that. They are retained by a majority vote, and no Florida appellate judge or justice has lost their post through merit retention.
There is a logical reason for that streak. Justices and appellate judges are heavily vetted by a committee of informed citizens that nominate finalists to the governor. And judges who are ethically compromised are frequently disciplined or resign from the bench, as was the case in Tallahassee last year when Paul Hawkes, the mastermind behind the lavish 1st District Court of Appeal building nicknamed the Taj Mahal, resigned rather than face an ethics trial.
In Florida, the anti-justices group is citing 10 of the thousands of cases Lewis, Pariente and Quince have overseen, producing an oversimplified "report card" that gives no details. For example, it cites the 5-2 opinion in which the justices were part of the majority that struck from the 2010 ballot largely symbolic opposition to the Affordable Care Act. The majority concluded that the ballot language was misleading. Ironically, the state's own attorneys all but concurred by offering substitute ballot language during the case. But the court — in a decidedly nonactivist posture — said it didn't have the authority to replace the language; only the Legislature did. So last year, lawmakers returned and tweaked the language, and voters will see it on the Nov. 6 ballot as Amendment 1.
Whether voters agree or disagree with the Florida Supreme Court's opinion in that case or any other case is not what merit retention is about, regardless of any special-interest group's effort to corrupt the process. States such as Iowa have seen their supreme court justices thrown out by voters because of the unpopularity of a legal decision. Floridians should not fall for such an attempt to intimidate the state's highest court and compromise its independence.