Florida Supreme Court Justice Jorge Labarga won the highest score in a Bar Association poll, but got the lowest retention vote of any high court judge in state history last Tuesday.
That disconnect reveals a growing gap between the public and legal elites who nominate state judges.
Labarga and fellow Justice James Perry were targeted for removal by a conservative coalition angry over the court's decision to kick Amendment 9 off the fall ballot. The measure would have given voters the opportunity to exempt Florida from the Obama health care law.
Labarga and Perry, who joined three other justices in killing Amendment 9 (they called its wording "unclear"), were retained with votes of 58.9 percent and 61.7 percent, respectively.
The two justices who ruled to keep Amendment 9 on the ballot -- Chief Justice Charles Canady and Ricky Polston -- were retained by votes of 67 percent and 66 percent.
Tea party groups and an organization called Citizen2Citizen claim credit for the lower approval levels of Labarga and Perry.
"This campaign was totally agrass-roots effort that wascompletely unfunded, yet it created an 8-10 point swing in the polls.In an election in which nearly 4.5 million people voted, that's fairly substantial," said Tom Tillison, a tea party activist in Orlando.
"The real success of this campaign is that it began just six weeks prior to the elections.Had we gotten an earlier start and had acquired any source of funding, I believe both judges would have failed to achieve retention.I think we've got their attention, regardless," Tillison said.
Since judicial retention votes began in 1978, no Florida state judge has failed to be retained, and favorable votes generally run in the 60- to 70-percent range. Labarga's 58.9 percent was the lowest ever for a Supreme Court justice.
Ironically, Labarga received the highest score 88 percent in the Florida Bar poll of lawyers of the seven Supreme Court justices.
With circuit, appellate and Supreme Court judges up for retention every six years, activists are heartened that future votes will not be so automatic.
State Sen. Carey Baker helped lead the anti-retention fight.
"As citizens, we should be able to depend on our justices to hear matters in an unbiased, apolitical manner, and believe that they will rule within the confines of the law, Baker told the South Florida Sun-Sentinel.
Singling out Labarga and Perry, the Eustis Republican said, "These justices have time and again exceeded their authority and our trust in creating new laws from the bench. At some point, it has to stop."
Venting similar frustration, citizens in Colorado and Kansas tallied tighter-than-usual judicial retention votes this year.
Rising criticism of unelected judges hit a high-water mark in Iowa, where voters threw out three state Supreme Court justices who imposed a controversial same-sex marriage law.
As in Florida, Iowa's judicial nominating commission tilts to the left. As in Florida, no Iowa justice had ever failed to win retention ... until now.
Before last Tuesday's vote, Justice Perry acknowledged the restive electorate, saying, "We're like sitting ducks."
But some dissenting members of Florida's legal community believe that the judicial selection process is fixed, and that retention votes are exercises in futility.
One lawyer -- who requested anonymity because any criticism of the Bar invites its sanctions, including disbarment -- argues that the Bar Association wields almost complete control over nominations through the state's Judicial Nominating Commission.
Directly appointing four of the JNC's nine members, the Bar also maintains a hold over two of five gubernatorial appointees because they are required to be members of the Florida Bar.
The nominating commission is heavily weighted with trial lawyers who tend to be reflexively liberal in their political orientation. These hail-fellow-well-met attorneys also are facile in persuading nonlawyers on the panel to their side.
While the governor appoints judges, the JNC stacks the deck by the kinds of nominees it sends up. The governor can only choose from the names, typically three, provided by the commission.
Gov. Charlie Crist compounded the commission's institutional bias by asking the panel to bring him nominees who would promote "diversity." Labarga and Perry were the response to that request.
To illustrate the futility of retention votes, nothing prevents the nominating panel from resubmitting judges rejected by voters. If, for example, Labarga and Perry had been ousted in November, their names could have gone right back to Crist, and he could legally reappoint them for another six years.
As if that weren't bad enough, groups like the George Soros-funded Justice at Stake are going around the country waging campaigns to empower committees to pick judges outright, entirely excluding elected governors or legislators from the process. In Nevada, at least, that idea hit a brick wall last week when voters there opted to keep their elective system for judges.
Given the de-facto lock the Florida Bar and the JNC already have on judicial selections here, reformers say retention fights are fruitless exercises -- too little, too late.
These critics say true reform will only come by backing up to square one and revising the way commission members are selected. The Legislature, for example, could appoint a share of the commissioners to effect a tripartite balance of power.
Alternatively, the legislative branch could have confirmation power over all appointments, as it does at the federal level.
A more sweeping option would be to scrap the appointment process altogether and simply elect judges (as is done at the county level and in several other states).
Yet such free-form democracy at the state level is opposed by the Bar, ostensibly because it would "politicize" the judiciary. Under the guise of promoting professionalism and objectivity, the Bar already muzzles speech in local judicial elections through its code of conduct that all but precludes judicial candidates from expressing candid positions on controversial issues.
So, instead, Floridians (including governors) are dealt a stacked deck by the Bar. And retention votes are empty exercises because voters have virtually no information on which to make an informed decision (thus, the 100 percent success rate). Newspaper editorial boards routinely regurgitate Bar endorsements, which, naturally, are unanimous for retention.
Reformers contend that until the judicial-selection system is opened up and democratized -- one way or the other -- the process of picking and retaining judges will continue to resemble old-style Soviet elections, where the Politburo (read: Florida Bar) calls the shots.
MEMBERS OF THE JUDICIAL NOMINATING COMMISSION
- Cynthia Angelos, who practices litigation and real estate development, is a former circuit court judge. She was a Florida Bar nominee and her term expires in 2014.
- Bob Butterworth, a former Democratic attorney general and secretary of the Department of Children and Families, was one of the lead plaintiff attorneys in the tobacco litigation. He was a Florida Bar nominee and his term expires in 2014.
- Alexander Clem, an attorney with Morgan & Morgan and past president of the Academy of Florida Trial Lawyers, practices in the areas of nursing home negligence, personal injury and wrongful death. He was appointed directly by the governor, and his term expires in 2014.
- Howard Coker, also a past president of the Academy of Florida Trial Lawyers, focuses on accidents, product defects, premises liability and other forms of negligence. He was a Florida Bar nominee and his term expires in 2011.
- Katherine Ezell specializes in commercial litigation, business torts, securities arbitrations, professional liability and personal injury cases. She was a Florida Bar nominee whose term expires in 2012.
- Martin Garcia is the principal of a private investment firm, Of Counsel to Hill, Ward & Henderson, and a past president of the Florida chapter of the American Board of Trial Advocates and the Trial Lawyers Section of the Florida Bar. He was a gubernatorial pick and his term expires in 2012.
- Robert Hackleman concentrates on commercial and corporate disputes, securities, unfair competition and intellection property, representing both sides. He served as class action counsel to Gov. Crist in 2008, was a gubernatorial pick, and his term ends in 2011.
- Kathleen Shanahan is a nonlawyer who is chair and CEO of WRS Compass, an environmental contamination cleanup company. She was a gubernatorial pick and her term expires in 2012.
- Jason Unger, who serves as chair of the JNC, and who served as Special Counsel to the Florida House of Representatives, represented the Bush campaign in the 2000 presidential election and focuses on election law, governmental affairs, health care, litigation and transportation. (The chair of the JNC is selected by majority vote and serves for one year.)
Reach Kenric Ward at email@example.com or at (772) 801-5341.