Legal scholars at the conservative Federalist Society are heaping skepticism on the Republicans' rationale for drumming liberal Justices Barbara Pariente, Peggy Quince and R. Fred Lewis out of the Florida Supreme Court for "judicial activism."
"I think you’re going to have a hard time making that label stick," said Florida International University law school professor Elizabeth Price Foley, who studied and dissected nine controversial state Supreme Court cases and then produced a 23-page report for the Federalists.
Bottom line: The cases may have been wrongly decided, the justices may be ideological -- and their ideology may even be a reason to vote them off the bench -- but you can't really call them activists. Foley said the decisions in these cases were supported by precedent and "acceptable methods of legal reasoning" and not based on personal opinion, which is the test for activism.
The Florida Current examined Foley's report:
Cases studied by Foley included two in which the high court barred constitutional amendments from the ballot, which caused a major rift with the Republican-run Legislature. Lawmakers restored one of those amendments this year, aimed at letting Floridians opt out of President Barack Obama's national health care plan, and also passed on requiring Senate confirmation of Supreme Court justices and tightening legislative review of judicial rules of procedure.
Most of the opposition to the justices has focused on a 2003 Tallahassee murder case, in which the justices ordered a new trial and the U.S. Supreme Court overruled the state justices. She said the justices had to choose between reasonable arguments on either side -- just as voters will have to make a judgment next month on keeping the three in office.
Pariente, Quince and Lewis are on the ballot for "retention," an opponentless and deliberately nonpolitical election in which voters merely decide if they can keep their jobs. If voters say "no" -- and that has never happened to a justice or an appeals court judge -- than the governor gets to appoint their replacements.
Eager for that replacement option, and angry that so many of their initiatives have crashed and died on the rocks of the Supreme Court, the Republican Party of Florida and the Koch brothers' super PAC, Americans for Prosperity, have funded a campaign against retaining the three justices. They've produced attack ads and forced the justices to respond with their own commercials.
In a Florida Bar poll conducted in September, all three justices won overwhelming support from the state's lawyers. They went 89 percent for Pariente, 90 percent for Quince and 92 percent for Lewis.
The Republican Party is publicly in favor of voting the justices off the bench. The Democratic Party has taken no position. "We will not politicize the one area of government that is supposed to be apolitical," said party spokesman David Bergstein.
Also silent on the retention issue: Gov. Rick Scott and Attorney General Pam Bondi, who has cases pending before the Florida Supreme Court.