Judicial activism or dangerous rhetoric?

It has been said by a particularly outspoken sect of Floridians that “Judicial activism is one of the greatest threats to freedom that exists in our country and state.” What then, are the recent hyper-partisan efforts to unseat Florida Supreme Court Justices? Are these not an assault on some of the most fundamental principles underlying our great state and country? Is this effort to politicize the bench not a greater risk to the foundations of democracy than the exaggerated claims of judicial activism?

Restore Justice 2012, which is linked with the Tea Party Movement, is aiming to remove three Florida Supreme Court Justices that are up for merit retention on the presidential ballot in November. This group’s most recent ads, including a flashy video depicting young voters expressing concern about Florida’s Supreme Court, are just more of the nebulous rhetoric spewing from right-wing partisans. Instead of informing voters of each candidate’s merits or even of the merit retention process, Restore Justice merely tries to scare voters (particularly young ones) into voting “no” to retain these three justices.

Further, upon closer inspection and consideration, the three justices in question are not “activist” like these Tea Party supporters so claim. Instead, the effort to remove these judges is simply because they voted 5-2 to reject a constitutional amendment that would allow Florida to opt-out of federal health care reform because it failed to meet the state’s ballot requirements. This same uber-conservative group also unsuccessfully tried in 2010 to oust the two other justices that voted to reject the bill: Jorge Labarga and James Perry. It is abundantly clear that this group is merely serving political interests, attempting to vote out three sitting judges in order to give Tea Party Governor Rick Scott the ability to appoint three judges that better reflect its right-wing views.

The merit retention system was developed in Florida in 1976 to keep politics and the tantalizing flow of money out of the judicial system. Today, 33 other states have forms of the merit retention system, which allow voters to decide whether judges are fit to serve another 6-year term. No judge has been ousted in Florida since the law was enacted, but judges have been removed by an oversight body called the Judicial Qualifications Commission, which reviews, removes and sanctions judges for bad behavior. This system was not created to allow mobilized throngs of the electorate to remove judges for voting against their interests, nor to allow certain groups to selectively change the composition of the bench.

In 2009, the Iowa Supreme Court ruled unanimously that the government had no power to deny citizens marriage licenses and related benefits. In 2010, Iowa voters voted to remove three state Supreme Court Justices in retaliation for the vote, setting a dangerous precedent in other states going forward. At the time, Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law, warned that “What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office.” Is this really what we want for our Supreme Court and the great state of Florida?

Although the Tea Party has provided a useful spark for constructive discourse and civic engagement, this most recent effort is an affront to the basic tenets of democracy that have provided the backbone of the United States since its founding. To flip the script and use the same tagline as Restore Justice 2012, “What if you could take a stand for freedom?” Vote “yes” to retain Justices Barbara Pariente, Fred Lewis and Peggy Quince, and to ensure that dangerous rhetoric doesn’t damage the vibrant bastions of democracy that are Florida and the United States of America.