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Former Republican judge and 2 US Attorneys to FL GOP: it's a "mistake" to politicize Supreme Court justice fight

Former U.S. Attorneys Roberto Martinez and Marcos Jimenez joined with Allison DeFoor, a former judge and GOP Lt. Gov. candidate, want the Republican Party of Florida to stop actively campaigning against three Florida Supreme Court justices whose rulings have irked conservatives. The three lawyers all say it's bad for government. Here's their Oct. 1 letter:

We, respectfully and as Republicans with long standing credentials, including former service by one of us as the Vice-Chair of the Republican Party of Florida (RPOF), suggest a reappraisal of the decision by the Executive Committee of the RPOF formally opposing the merit retention election of three Supreme Court Justices. We request that you deliver this letter to each member of the Executive Committee.

Judges should not decide legal cases based upon partisan politics. That is fundamental to our nation's system of government. To enhance the judiciary's neutrality and independence from partisan political activity Florida's legislature has placed legal restrictions on the type of political activity that may occur in a judicial election.

Florida Statute 105.09 makes it illegal. punishable as a criminal misdemeanor, for political parties to endorse, support, or assist a candidate for judicial office. Florida Statute 105.701 makes it illegal. subject to the payment of a civil fine, for any person to use a party affiliation in connection with a judicial election, including in merit retention elections.

The RPOF was within its legal right to express its position publicly. But, just because it has that legal right, does not mean it was right for it to do so. The retention of Supreme Court Justices should not be turned into partisan political affairs.

Imagine if the Florida Democratic Party (FDP) were officially to oppose the retention of justices whose decisions had upheld property rights against zoning decisions or the constitutionality of school vouchers. The RPOF rightly would have condemned that activity by the FDP. It is no different in this case.

The process of rendering a judicial decision is complex and sophisticated. It is not a partisan political undertaking. As lawyers we know that to understand the reasoning of a judge in rendering a decision it is essential to review all the material facts in the case and to read and analyze the law cited in the decision. Judges decide cases based upon their interpretation of the law and the exercise of their judgment.

Merit retention elections in Florida were meant to serve as an accommodation between the competing concepts of independence for the judiciary and accountability to the public in our democracy. They are well intended, but imperfect in practice. The simple yes or no vote is still a vote in a free election where the public has the constitutional right to vote as it wishes, including a vote based on the popularity of the justices and of their judicial opinions.

However, Florida, in an attempt to minimize the impact of politics and public opinion, inherent in any election, on the independence of the work of the judiciary, has enacted statutes making all judicial elections nonpartisan. The RPOF and the FDP may not agree with those statutes. But, those statutes represent the will of Floridians to eliminate partisanship and partisan political activity from judicial elections, including in merit retention elections.

Of course, individual elected officials and members of the RPOF, of the FDP, or of any political party are free to participate publicly in political activity relating to the retention of the three Supreme Court Justices. They have the constitutional right publicly to criticize or support the justices and to campaign to defeat or retain them, regardless of the correctness or wisdom of their views. But, it is a mistake for any political party to inject itself as partisans, as the RPOF has done, in a merit retention election. Partisan political activity serves to turn the judiciary into a political branch of government, something that our founding fathers did not want nor ever intended.

We support the elimination of merit retention elections entirely. So long as Florida has merit retention elections the public will exercise their constitutional right to vote as they wish based upon whatever reason they want, including the popularity of the justice's opinions, and not necessarily on the legal abilities of the jurist and their integrity. These elections unfortunately cause special interest groups representing many organizations and interests, from the left and from the right, whose livelihood depend on the rulings of these justices, to raise significant monies to launch political campaigns to support or defeat the retention of the justices. All of the perceived evils of a popular election of an elected official still infest a judicial merit retention election, no matter how much we wish them to be otherwise. It is wishful thinking at best, and likely foolish, to assume that politics, including partisan politics, will not playa significant role in these judicial elections.

The solution is to eliminate merit retention elections entirely, and to allow the justices to serve for only one term of twelve to fifteen years subject to confirmation by the Florida Senate. This will serve to protect the neutrality and independence of the justices while assuring some accountability to the public by the limited term ofoffice and the confirmation process. We would hope that the Executive Committee of the RPOF would support this change to our laws. It is in the best interest of the public.
But, so long as our justices are subject to merit retention elections they will be subject to the pressures of public opinion. In the meantime, as Republicans we expect that our own political party would take the lead and set the example for others by forsaking and repudiating the involvement of partisan politics in merit retention elections.

We have spent most of our adult lives arguing or appearing before judges on behalf of clients, serving our nation as the United States Attorney in South Florida, the People of Florida as a Monroe County Sheriff, or serving as a state trial judge. In every case all we hoped for was an independent-minded jurist who based his or her decision on the facts and the law and on absolutely nothing else.

It is because we believe it so fundamental to our democracy and our liberty that our judiciary be neutral and independent, that we disagree with the decision of the Executive Committee of the Republican Party of Florida (RPOF) when it voted formally to oppose the merit retention election of three Supreme Court Justices. Our experience suggests strongly that partisan politics will add more heat than light when placed near the merit retention election of these three Florida Supreme Court Justices.

We ask the Executive Committee of the RPOF to reappraise its decision for the RPOF formally to oppose the merit retention election of the three Supreme Court Justices. The RPOF, as a political partisan organization, should not formally get involved in these merit retention elections.