Ordering the Courts: Right Wing Attacks on Judicial Independence in 2000

Florida

In Florida, conservative lawmakers engaged in a flurry of activity in an attempt to shape the state’s Judicial Nominating Commissions, as well as to usurp the state Supreme Court’s rule-making authority. Upset by a spate of recent rulings striking down legislation favored by the Republican Party and the state affiliate of the Christian Coalition, lawmakers introduced several bills designed to retaliate.

Angry over the court’s ruling that the state’s Death Penalty Reform Act of 2000 was unconstitutional, lawmakers introduced a constitutional amendment designed to override the decision. The amendment would have allowed the legislature to restrict death row inmates’ rights to challenge their convictions by setting time limits after which even new, exculpatory evidence could not be considered. The amendment would also have prohibited the court from adopting rules that conflicted with laws passed by the Legislature and would have made it easier for lawmakers to repeal court rules.

The original bill mandated that once a death row inmate had exhausted state court appeals, judges would have to ignore newly discovered evidence of innocence unless the inmate could prove that his or her constitutional rights had been violated. In response to the Supreme Court’s decision, the Florida Christian Coalition’s former director, John Dowless, said, “We’ve got an unaccountable judiciary and this will inject some accountability.”2 However, the proposed amendment failed in the legislature and was never presented to the voters.

Frustrated by other defeats, lawmakers also introduced a court-packing bill that would have expanded the court from the current seven to nine members, giving Governor Jeb Bush two subsequent appointments, as well as another bill that would have given the governor more control over the state’s Judicial Nominating Commissions. The Florida Christian Coalition, which has long supported attempts to restructure the Commissions, threw its support behind attempts to expand the court. Although both bills died, Dowless vowed to revive the court expansion measure in 2001. The Christian Coalition also posted a report on its web site explaining how the Judicial Nominating Commissions work, urging its members to apply for positions, and offering tips on how to get appointed.

The Christian Coalition, along with the Family Research Council and Concerned Women for America, also successfully urged the defeat of a Florida referendum that would have promoted judicial independence. The Coalition’s web site urged its supporters to vote against an initiative appearing on the November ballot that would have eliminated judicial elections in favor of merit selection in some areas.

In the months before the election, a battle erupted over the wording of the referendum, with supporters of the change accusing opponents of rewriting the language to mislead voters. The original language asking voters if they wanted trial judges to be selected through a system of “merit selection and retention” was amended so that it asked whether the selection of judges should be changed “from election by a vote of the people to selection by the judicial nominating commission and appointment by the governor with subsequent terms determined by a retention vote of the people.”3 Supporters of merit selection complained that the new language intentionally eliminated the term “merit” and created a misleading description of the role that the Judicial Nominating Commissions and the governor would play under the new system, thereby preventing voters from casting informed ballots. The Florida Supreme Court upheld the change, and the measure was defeated in the November election.

Tensions escalated in response to the unprecedented closeness of the year’s presidential election, with angry criticism of the Florida Supreme Court coming from a myriad of national Religious Right organizations and political leaders. The Free Congress Foundation, the Eagle Forum, Focus on the Family, Charles Colson, and many others railed against the Florida Supreme Court’s decisions to temporarily allow the hand-recounts requested by Vice President Al Gore, later reversed by the U.S. Supreme Court. The Florida Christian Coalition decried the rulings, stating, “[t]hink about the battle for the soul of our country. Who is responsible for the decline of morality in America? Of course, we all know the answer is the devil, but what people and institutions does he use to implement his will? …[I]n many cases it’s the judicial branch of our government!”4

One right-wing commentator, Paul Craig Roberts, brought the rhetorical war to a new low when he called for the arrest of the state supreme court justices, claiming that “[t]he corrupt Florida Supreme Court must be severely punished for participating in vote fraud. Impeachment is too good for the Gang of Seven. Arrest, indictment and trial are the best response to the court’s criminal behavior.” He added that if “the Republican Party permits this extraordinary abuse of office by the Florida Supreme Court, Republicans will have signed an American version of the Enabling Act, which in 1933 transferred legislative power from the German Parliament to Adolf Hitler.”5

Amid the unrelenting criticism, several organizations were formed with the stated intention of unseating many of the supreme court justices who had voted for recounts when they come up for retention election. Republican activists convened a group called Balance to the Bench in hopes of raising $1 million and organizing 100,000 people to begin a campaign against Justice Harry Lee Anstead, one of the four justices who ruled that Florida counties should begin hand recounts, though the recounts were halted by the U.S. Supreme Court less than 24 hours later. Balance to the Bench claims that its first goal is Anstead’s defeat in 2002, though “its full goals are far greater,” namely the creation of “a more conservative bench.”6

Another group, the Committee to Take Back Our Judiciary, was formed by Mary McCarty, a Republican Palm Beach County commissioner, with the intention of raising $4.5 million for advertising designed to “beat these liberals and have them removed from the Court, making way for more conservative jurists.”7 Along with targeting Anstead, McCarty has zeroed in on Chief Justice Charles Wells despite the fact that he issued a scathing dissent in the court’s second recount decision. The group has also targeted Justice Leander Shaw, although he will never face another retention election, because he will reach the state constitution’s mandatory retirement age when his term ends in 2003.

The Florida Christian Coalition has created its own web site, Floridarecall.org, criticizing the Florida Supreme Court’s election-related decisions. It has also placed a petition on its official coalition web page asking the Florida House of Representatives to examine the Supreme Court’s actions. Along with the Christian Coalition, the Florida Citizens for a Sound Economy Foundation is also pushing the petition, which is linked to an article on the Center for the American Founding’s web site entitled “Are the 7 Justices of Florida’s Supreme Court Fit to Serve?” written by the center’s founder/director Balint Vazsonyi, who is also a columnist for the Washington Times. Though the Floridarecall.org site contains little more than a survey asking whether the seven Supreme Court Justices should be recalled, its aim is to gather support for a constitutional amendment that would allow for such recalls. The Coalition’s executive director, Terry Kemple, has also stated that its 2002 voter guides will include information on how the justices ruled on particular issues.

In early 2001, several legislative measures were introduced to further undermine the independence of Florida’s judiciary. Among them are constitutional amendments that would require Supreme Court justices to stand for retention election every six years and receive approval from two-thirds of the voters, rather then the current requirement of a simple majority, and another that would force Supreme Court justices to run in state-wide elections and serve only one eight-year term. Right-wing organizations and business groups are also supporting a bill similar to the one introduced in 2000 that would give the governor more control over the state’s 26 Judicial Nominating Commissions. Currently, each commission consists of nine members; three appointed by the governor, three appointed by the Florida Bar Association, and three non-lawyers chosen by the first six members. These statewide commissions recommend a list of candidates for the Supreme Court, the five appellate districts, and the twenty judicial circuits to the governor who then makes the final appointment. Under a bill recently passed by the Florida House of Representatives, the governor would be given the authority to appoint all nine members of each commission, with the requirement that five positions go to members of the Florida Bar. Recent reports indicate that right-wing groups, such as the American Family Association and the National Rifle Association will also participate in efforts to campaign against sitting state supreme court justices. All this suggests that Florida will be a hotbed of right-wing activity focused on the state courts over the next several years.

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