Florida's Republican party is conducting an unprecedented campaign to have voters unseat three state supreme court judges in a move the justices have denounced as aimed at breaking the last obstacle to the party's unfettered exercise of power.
The campaign to unseat the judges is being waged in tandem with a ballot initiative to amend the state constitution to give the Republican-dominated Florida legislature greater control over the supreme court, including appointments, and to change court rules, such as the right to a speedy trial.
The GOP move is in part funded by Americans for Prosperity, the rightwing billionaire
Koch brothers' Super Pac, and other conservative groups. But the campaign has divided
Republicans, with some legislators criticising their own party for what they say is an attempt to "pack the court".
The Republican move is opposed by the Florida Bar Association and various state police unions.
One of the targeted judges, Barbara Pariente, has accused the Republicans of trying to remove her from the bench in order to take control of the judiciary.
If any of the judges is removed, the Republican state governor, Rick Scott, selects the replacement.
"This is about a group, a political party, that wants to take control over the third branch of government," Pariente said. "We cannot have a state where judges and justices who are up for merit retention are fearful that they will lose their jobs simply because there is some segment that has money and the ability to speak out and that wants to intimidate the third branch of government.''
Since 1976, following a scandal that led to the resignation of two justices, state supreme court judges are required to face a referendum of Florida voters every six years to decide if they should keep their seats on the bench.
Until now, the "merit retention" ballots have been non-partisan affairs and no judge has ever been voted off the court.
The Republican party leadership in Florida has accused the three targeted justices of judicial activism and "egregious" decisions over rulings that have overturned death sentences, blocked the governor's attempt to claim new powers over spending and determined that an ideologically-driven school voucher system that gave state funds to private schools was unconstitutional.
Pariente drew stinging criticism from pro-life activists as the author of a 2004 ruling overturning a state law authorising the then governor, Jeb Bush, to keep alive a woman who was in a persistent vegetative state, Terri Schiavo, against the wishes of her husband, who wanted the feeding tubes removed.
Two years ago, the judges stopped an attempt to hold a referendum on an amendment to the state constitution to block implementation of the president's health care reforms, saying that the wording was confusing. A reworded measure is on this year's ballot.
The three justices were also party to the Florida supreme court's order in 2000 that the presidential election ballots in the state should be recounted, potentially depriving George Bush of the victory that put him in the White House. The state court was overruled by the US supreme court, delivering Bush his controversial win.
But the Republican party's attempts to sway public opinion against the judges have focussed on an emotive decision to give a confessed murderer a new trial, a ruling later overturned by the US supreme court in Washington.
"While the collective evidence of judicial activism amassed by these three individuals is extensive, there is one egregious example that all Florida voters should bear in mind when they go to the polls on election day," Florida's Republican party executive said. "These three justices voted to set aside the death penalty for a man convicted of tying a woman to a tree with jumper cables and setting her on fire.
"The fact that the
United States supreme court voted, unanimously, to throw out their legal opinion, raises serious questions as to their competence to understand the law and serve on the bench, and demonstrates that all three justices are too extreme not just for Florida, but for America, too."
The conservative Federalist Society commissioned a constitutional lawyer and law professor Elizabeth Price Foley to analyse nine of the judges' most controversial decisions since 2000.
"There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida supreme court,''
she wrote in a report. "There are disagreements, true. But disagreements do not suggest that those with whom you disagree are unprincipled."
The first African American woman to sit on the Florida supreme court, Peggy Quince, warned of a threat to the independence of the judiciary in Florida.
"No fair, impartial court means no justice, no freedom," she told the Hillsborough County Bar Association. "We do not want and we should not want to go back to a system where judges are beholden to anyone – no political party, no group, no individual."
The third justice the Republicans want out is R Fred Lewis.
"Any time you have the threat of a judge making a decision because he or she is looking over her shoulder or his shoulder as to who has the cheque book behind you the next time around, you've just defined a corrupt system," he said.
Some Republicans have challenged their party's claim that the campaign is the result of a grassroots movement. Paula Dockery, a Republican state senator,
wrote in Hernando Today that she sees no evidence of the party leadership's claims of a popular backlash against the justices.
"The party's unprecedented step of asking voters to turn out the justices… has taken many in the legal system and in the party by surprise," she said. "Americans For Prosperity (AFP), a conservative and well-financed group affiliated with the Koch Brothers, teamed up with the party in this effort, which seems to be part of a national agenda. Ousting the three justices would create enough seats for Governor Rick Scott to reshape a court that has ruled against him on numerous occasions. This is a dangerous precedent that would jeopardize the vital independence of the court.
"As a Republican elected official, I am terribly disappointed by this overt effort to pack the supreme court with political pals who will do the bidding of those who have engineered this attack on judicial independence."
Americans for Prosperity say that it is the judges who have politicised the supreme court with their positions.
"Our critics have accused us of trying to politicise the judiciary, but I say far from it," said the group's Florida director, Slade O'Brien. "We are calling attention to the court's decisions that have in fact politicised the bench, allowing their own views to usurp the law and separation of powers, by clearly identifying rulings that bear these instances out. It is the rulings that should be reviewed, discussed, debated and we believe criticised, not the individuals calling attention to them."
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