4 Florida justices have lost our confidence | A Sun Sentinel and Orlando Sentinel editorial
The Orlando Sentinel and South Florida Sun Sentinel editorial boards weigh in on retention of Florida Supreme Court justices.
The Florida Supreme Court
The Florida Supreme Court [ MARK WALLHEISER | Getty Images North America ]
Published Oct. 15, 2022

Gov. Ron DeSantis has reshaped the Florida Supreme Court into a political instrument of right-wing ideology that cannot be trusted to uphold the rule of law. The public’s only remaining influence over this rogue court is to deny new terms to its offending members when the opportunity arises — as it will on Election Day, Nov. 8.

Of the five justices seeking merit retention, we strongly recommend a “yes” vote only for Jorge Labarga, 70, the court’s lone moderate, whose principled but lonely dissents in high-profile cases have exposed the majority’s radical activism.

The justices whose retention we oppose are DeSantis appointees John Couriel and Jamie Grosshans and the more-senior Charles Canady and Ricky Polston, the nucleus of the harsh new majority. If voters remove any or all of these judges, it will be the first time voters have exercised their authority to do so — but even though this step is unprecedented, we feel it is warranted.

DeSantis may have revealed more than he intended in an Aug. 25 interview with conservative broadcaster Hugh Hewitt. He said his prospective Supreme Court appointees are questioned by “a group of people that I trust,” including “six or seven pretty big legal conservative heavyweights,” some outside Florida.

Who are these people? DeSantis won’t say. His press office ignored our four requests to identify them. The four sitting justices he appointed won’t say if they were vetted by an entity other than the official Supreme Court Judicial Nominating Commission, which recommended them to DeSantis.

It’s obvious who DeSantis’ secret influencers are not. By law, all nine nominating commissioners must be Florida residents. His clandestine consultants are likely members of the arch-conservative Federalist Society, like the governor himself and his Supreme Court appointees. Whoever they are, his refusal to identify them is reason enough for voters to register their disapproval by rejecting his justices.

DeSantis told Hewitt he approves of “judicial activism” — something virtually all Republicans claim to deplore, “if that’s the proper interpretation of the Constitution.” In other words, if he agrees.

Florida’s highest court has become breathtakingly activist, repealing precedents wholesale to make criminal laws harsher, the death penalty more likely and civil courts more hostile to people with damage claims against Big Tobacco and other corporate defendants. It allowed an unconstitutional legislative gerrymander to go into effect. It blocked a proposed assault weapons ban from reaching voters. Without any pending case, it forbade the Florida Bar from requiring diversity among panelists who teach continuing education courses that lawyers are required to take.

A court so dismissive of tradition and judicial restraint is unlikely to enforce Florida’s anti-gerrymandering amendments or abide by its own 1989 decision establishing abortion as a protected right of privacy, even though both rights have been emphatically endorsed by voters in recent elections.

We oppose Justice Ricky Polston with mixed feelings because he was the only justice to buck Canady, the chief justice at the time, over creating a wholly unnecessary sixth district court of appeal for which no explanation exists but parochial politics. Voters should weigh that in Polston’s favor.

The legal community has taken notice, as reflected in a recently released poll of Florida Bar members based on responses only from lawyers familiar with the court’s work. Only 73% favored Canady’s retention and only 74% approved of Polston — a significant drop from their 84% approval ratings when they were last on the ballot in 2016. Labarga leads the 2022 list with 85% approval, compared to 91% six years ago.

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The two recent DeSantis appointees, with shorter track records, fared worse. Couriel’s approval rating was 63% and Grosshans earned 59%, the worst score ever except for Justice Joe Boyd’s 56% in 1980, his first and only retention election since surviving an impeachment investigation in 1975. (The voters returned him to the bench despite it all.)

Couriel’s rating is at odds with an impressive resumé. A 43-year-old Harvard law graduate, he was an experienced assistant U.S. attorney in Miami before joining a law firm with an international practice. Grosshans, 43, an Ole Miss law graduate, was a former Orange County judge and a judge of the Fifth District Court of Appeal when she became DeSantis’s second choice for an open Supreme Court seat two years ago.

Labarga, 70, a native of Cuba, owed the start of his judicial career to Gov. Lawton Chiles’ respect for judicial independence. Warned that a nominating panel tried to stack the deck for another candidate, Chiles appointed Labarga to a Palm Beach County judgeship despite his having contributed to Jeb Bush’s campaign against Chiles in 1994.

Polston, 67, and Canady, 65, were appeals court judges appointed by then-Republican Gov. Charlie Crist in 2008. Canady also had been a congressman from Lakeland and one of the House managers in the impeachment of President Bill Clinton. Crist also appointed Labarga and another moderate, James E.C. Perry, who left in 2016 due to mandatory retirement.

It’s true that if DeSantis is reelected, he could reappoint any justices who are voted out or select new ones to follow in their footsteps. But rejection would send a clear and powerful message to the legal and political universe that voters are paying attention.

The court’s most radical actions concern the death penalty. It scrapped a 2017 decision requiring a unanimous jury recommendation for a death sentence, in effect inviting the Legislature to bring back split death verdicts, an outcome that exists only in Alabama. Equally shocking, it repealed its 1973 commitment to review all death sentences for proportionality, a check against excessively harsh or disproportionate sentences.

Labarga protested strenuously that the court was eliminating “an important safeguard for ensuring that the death penalty is only applied to the most aggravated and least mitigated of murders.”

Canady had long argued that if the U.S. Supreme Court did not demand proportionality review (which it has never forbidden either), Florida could not require it.

Joined by DeSantis appointees, Canady finally got his way. But voters have the final say.

The Orlando Sentinel Editorial Board consists of Editor-in-Chief Julie Anderson, Opinion Editor Krys Fluker and Insight Editor Jay Reddick. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney and Anderson.

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