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Americans for Prosperity criticizes Federalist Society report, prof clarifies

Americans for Prosperity Florida, the conservative advocacy group affiliated with the Koch brothers, were not too happy with a Federalist Society report issued Wednesday that concluded some of the most loaded charges used against the justices up for merit retention were unfounded.

Florida International Unversity Professor Elizabeth Price Foley concluded in the paper commissioned by the conservative legal group that, “There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court.’’

Slade O'Brien, state director for AFP Florida, said Foley's report "amounts to little more than apologist piece for the most activist court in our country" because her analysis of nine controversial cases failed to take into consideration why the justices ruled the way they did.

"Ms. Foley's superficial analysis summarizes and rehashes the majority's opinions, in defense of how they could be viewed, instead of looking at why the justices arrived at those decisions,'' O'Brien wrote in a statement. 

Foley said in an interview with the Herald/Times today that initial reports about her white paper failed to emphasize a key point, which was made throughout the report but may have been "too subtle." That is that the justices' decisions indicate a clear ideological pattern.

"I certainly did not and would never say that the justices up for retention have made these decisions in an unprincipled manner, but I do think there is a difference between making decision based on an unprincipled manner and making decision based on ideology,'' she said. "You can find ideological patterns in their decisions."

She disagrees with opponents to the justices who call them activists just because their decisions may be formed by a liberal ideology rather than a conservative one.

"That is ridiculous,'' she said, noting that under that logic justices whose decision are formed by a conservative ideology could also be called "activist." She also assiduously avoids use of the term "activist" because, she said, it has been so overused everyone has a difference definition of it.

As for Justices R. Fred Lewis, Barbara Pariente and Peggy Quince, who are up for retention on the November ballot, she considers them liberal.

"I’m not a big label person but certainly, if you are going to use modern terminology to encapsulate it, they are liberal,'' she said, based on the choices they had when ruling on the nine cases she examined. 

She added that she may have been too subtle in her conclusions that the justices, like all humans, inform their decisions by their ideology "but they are not in fact acting in an unprincipled way,'' she said. 

O'Brien clearly disagrees. His organization has launched a web site and a campaign aimed at defeating the justices. He said in a statement that his organization believes the justices were unprincipled and "abused their power."

"You either believe in judicial restraint or you don't. You are either a strict constitutionalist or you are not. You don't get to have it both ways,'' he wrote. "To state there are many paths to reach a decision is to admit the law can be bent toward a desired outcome. This is exactly what we have argued -- that this court has abused its power to achieve a desire result. It is indeed a shame that Professor Foley didn't have the courage to state that fact.”

Foley said she accepts the criticism but stands by her report.

"I don’t think I’ve necessarily made anybody happy with this report,'' she said. "That just happens because people are very passionate about this election...A lot people who take their ideology very seriously have a hard time with that, but I’m ok with it."

The goal of the report, Foley wrote, was to give voters "objective and accurate" information about nine controversial cases before the court so that they could employ "their own subjective notion of 'merit'" in the retention races.   Download Federalist Society Report