For almost 40 years, Florida’s Supreme Court has been a model of judicial independence. Judges are appointed, not elected, to the Florida Supreme Court. The process includes significant input from the Florida Bar Association, made of lawyers from all places and sides of the legal arena. The Governor has significant input in the process and he gets to appoint whom he wants, so politics plays a role in the appointment process. But once appointed, the Justices do not face political elections and opposing party candidates. The Justices serve the law, not political parties or political interests. They are only subject to “merit retention” every 6 years, meaning the ballot question is s “yes” or “no” on whether to retain them. They do not run against anyone. In the 40 years since we have had this system, no Supreme Court justice has lost a seat.
The result of our system is that Supreme Court justices have been free to serve our state by focusing on the law, not politics. They delve into the intricacies of the law, seeking to render decisions that are true to their honest and conscientious understanding of the legal principles available, as opposed to serving someone else’s political agenda.
This year, with the unlimited power that unlimited wealth combined with the new power to spend that wealth on purchasing elections, Governor Scott and his big business and big tobacco friends are now in the business of buying Florida’s Supreme Court. The game is this: manipulate voters into casting “no” votes against three Florida Supreme Court justices: Barbara Pariente, Peggy Quince, and Fred Lewis. These three jurists have received a favorable rating from over 90% of the Florida Bar. This means lawyers from both political parties, all political philosophies, and with clients in every corner of our society, overwhelmingly favor retaining these justices. These justices are qualified and ethical.
This is not about integrity, judicial qualifications, or the truth. This is about power. Big business has almost unlimited power in America. The one thing that keeps it in check is the court system, especially a system that is independent of politics and cannot be bought. Enter Citizens United. In that controversial decision, the United States Supreme Court recently took the limits off of corporations that spend money in American political elections. Now, with the Citizens United decision, big business can spend its unlimited resources on influencing elections, including merit retention elections.
For years, our elected officials have been much easier than Supreme Court justices to influence. Campaign donations and the party system have favored business interests in the legislature and in the governor’s mansion. But the judicial branch of government has been largely above the fray. This is especially true of the Supreme Court because of the merit retention process. As a result, the independent court has not been a predictable or controllable branch for big businesses like the tobacco industry. With big money, big business has yielded power and influence over politician legislators and governors. But big business has been unable to persuade the courts with anything other than legal arguments. In the courts, big business and the common man are on equal footing, armed only with reason, advocacy, and legal precedent. The Supreme Court has been free to pronounce and interpret the law based on its fairness, not on who is bidding.
This drives big business and their governor crazy. They want unlimited power, and the Supreme Court is in their way. With that, the plan was hatched to kick off three justices who have independent minds and to replace them with their own tools. You see, if they are successful in removing Pariente, Quince, and Lewis, that will give Governor Scott the immediate power to appoint three new justices to the bench. Presumably, the new justices will be lap dogs to big business and the governor, but if they or the other four stray, they will get the same treatment as Pariente, Quince, and Lewis. This is a game changer.
Americans For Prosperity ("AFP"), a big business political group formed by the Koch brothers, is aiming at the merit retention votes. Already we have a glimpse of what they are up to. Through something called "Restore Justice," they have launched an attack against the justices, using the case of Joe Nixon, a murderer convicted of a gruesome killing, to make us think the Justices are soft on crime.
Nixon was convicted and sentenced to death. In 2009, the Court, including justices Pariente, Lewis and Quince, voted to reject Nixon's appeal, declared him to be mentally competent, enforced his sentence, and gave him the death penalty. That's right, the death penalty. Hardly something a soft on crime court would do.
In a 2003 decision, however, concerned that Nixon's lawyer confessed Nixon's guilt to the jury without Nixon's consent, the Court found that his lawyer violated the rules and corrupted the process. The case became known as the "my client is guilty defense." In 2003, in an opinion written by Bush appointee Raoul Cantero, the Florida Supreme Court ordered a new trial for the convicted man. In 2004, the United States Supreme Court reversed the Florida Court’s 2003 opinion.
So, even though AFP knows the justices gave Nixon the death penalty in 2009, AFP will attack the justices for being soft on crime. The attack is a lie. But AFP doesn’t care. And they don’t care about the crime and punishment issue either. They are using it as a political football to manipulate voters, to arouse passion against the justices, and to purchase the Court. What AFP cares about is getting total control of government so that big tobacco and others industries can do whatever they want, whenever they want, without being accountable to the people or to the law.
Big business will pour millions of dollars into Florida for this. They will seek the outcome they got in Iowa when they ousted a Supreme Court justice in a merit retention election. Or Mississippi where they bought the Court several years ago. Or Texas. Or Alabama. The list goes on. When justice is for sale, like anything else it frequently goes to the highest bidder.
Television ads, with 30 second sound bites, do not lend themselves to truthful revelations. Shedding light on the attacks will be difficult. The case of Joe Nixon can’t be told that quickly. It is complex and detailed. Instead, the 30 second spots will smear the justices and scare or anger the voters, over and over again, by a campaign to buy the court with unlimited funds and big lies. Big business believes Florida voters are easily swayed, unsophisticated, and gullible. Are they right?