By Noreen Marcus, FloridaBulldog.org
In a hyperactive election season, it’s easy to forget this Florida ballot issue: Should two of the seven Supreme Court justices be allowed to keep their seats?
Voters will find “Justice Renatha Francis” and “Justice Meredith Sasso” somewhere down-ballot. No party affiliation, no opposition. Shall they be “retained in office?” Yes or no.
In theory, Francis and Sasso could win fewer than 50 percent plus one “yes“ votes and have to find other employment after the Nov. 5 election. Or, they could retire while still in their 40s.
But the operative word is “theory.”
None of their predecessors has been rejected in the 48 years since Florida voters adopted a merit retention system for district appellate judges and Supreme Court justices.
This means the governor picks those jurists; then voters discard or approve them for six-year terms. Merit retention was intended to be a check on the governor’s appointment power.
It hasn’t worked out that way, however, according to Bennett Brummer, who was Miami-Dade County’s public defender for 32 years before retiring at the start of 2009.
A MEANINGLESS VOTE
“Merit retention elections are a sham,” he said.
In the last merit retention election, part of the 2022 midterms, almost 1 million fewer voters cast ballots for the justices than for the governor’s race between incumbent Gov. Ron DeSantis and Charlie Crist. A total of 7,720,523 voted for governor. Justice Charles Canady, who had the highest vote total of five justices, won 4,358,513 “yes” votes and 2,455,888 “no” votes, for a total of 6,814,401.
Brummer said many voters skip over the merit retention ballot section because, among other reasons, “the people recognize that their vote is meaningless.”
“There’s no check on the governor at a time when we really need some sort of balance of power and some sort of separation of powers,” he said. “The merit retention elections are part of a trend toward elimination of meaningful elections, which consolidates power in the government and shifts power away from the public.”
This election season, no one’s challenging Francis or Sasso, let alone mounting an aggressive campaign that might affect the vote. The last time that happened, in 2012, the Koch family and other wealthy conservatives failed to unseat the three liberals they targeted, Justices Barbara Pariente, Peggy Quince and R. Fred Lewis.
Also this election season, the Florida Bar didn’t conduct its usual poll of what is now nearly 100,000 lawyer members to help voters decide which justices and district appellate judges to keep and which to discard.
Last year the Bar’s Board of Governors ended the poll, after 45 years, based on a recommendation from its Program Evaluation Committee, according to Bar spokesperson Jennifer Krell Davis.
She explained in an email to Florida Bulldog that a subcommittee had examined the poll’s current value. “Concerns were raised about the poll not being scientifically based” and “the possibility of the results being manipulated by campaigns,” Davis wrote.
Subcommittee members discussed whether the poll “could be perceived as political conduct, which is outside of The Florida Bar’s role as an arm of the Florida Supreme Court,” she wrote.
With federal courts requiring “a more limited role” for state Bars, The Florida Bar is reconsidering many programs, Davis wrote.
JURY LIKE LIFETIME TENURE
For context, in the 2022 merit retention poll, the court’s only moderate, Justice Jorge Labarga, got the highest marks from 5,738 lawyers: 87 percent of poll-takers with “considerable knowledge” approved of his performance.
Justice Jamie Grosshans, a member of the court’s far-right supermajority, had the lowest grade, 55 percent, and 45 percent of knowledgeable respondents wanted her off the court.
Despite those evaluations, and newspaper editorials urging voters to reject the four conservative justices, they all easily won retention and Labarga didn’t outshine his colleagues. In fact, Grosshans, with 63.8 percent for retention, did slightly better than Labarga, with 62.3 percent – the lowest percentage of positive retention votes.
So why even bother to print the names of Francis and Sasso on ballots – names known to few people outside the judicial system – and count their votes? The merit retention system gifts Florida appellate judges with the same lifetime tenure that federal judges enjoy, critics say.
“I don’t think that merit retention has proven to be a viable option for people in a democratic form of government,” said Janet Ferris, a retired Tallahassee circuit court judge.
She suggested that because appellate judges are known mainly through their opinions and jurisprudence, or, their legal philosophy, any non-lawyer who wants to be an informed voter must master a steep learning curve. And that’s unrealistic.
“It’s just too much to ask a regular person to parse jurisprudence and legal decision-making,” Ferris said. “I think I’m able to do that because I’m a retired judge, but what does the average person do? Is it fair?”
SCANAL AND COMPROMISE
Up until 1976, all Florida trial and appellate judges were elected. Today trial judges still run for office, but thanks to a high court corruption scandal, appellate judges are appointed and retained. In the early 1970s three justices resigned, their reputations destroyed by cronyism and influence-peddling.
“A retention election was a compromise, politically, between those who favored a merit-selection form of appointment and those who wanted to keep elections,” said Supreme Court historian Neil Skene. “Republicans, the minority party in Florida then, especially saw local elections as the only way that Republicans could win judgeships.”
In 1976 voters passed a ballot measure that added merit retention to the state constitution. Judicial nominating commissions (JNCs) would screen applicants, recommend the best candidates to the governor, and make sure the courts weren’t stocked with the chief executive’s buddies.
The governor chose only three of the nine members on the first JNCs. That changed in the early 2000s, when Gov. Jeb Bush backed legislation that let governors pick a majority of commissioners. Eventually the governor was empowered to select all nine.
“It was the beginning of the end for merit selection,” former Supreme Court Justice Harry Lee Anstead has written. “As a result, we are right back to a system where the governor, and partisan politics, control the entire process.”
DeSantis has used his authority to transform the Supreme Court from majority liberal to supermajority conservative. He says he relies on the Federalist Society for help with judicial selections, and court insiders have described his intense efforts to install a panel of justices who would severely limit legal abortion in Florida.
The governor succeeded on April 1 with the court’s ruling in Planned Parenthood of Southwest and Central Florida v. State. In a majority opinion written by his appointee Grosshans, the court authorized an extreme, six-week abortion ban. The ruling shrank Florida’s constitutional privacy guarantee, which had protected personal decisions like abortion choice, so that the law covers only informational secrecy.
The vote was 6-1, with Labarga dissenting. Sasso, another DeSantis appointee, wrote a separate opinion that questioned Planned Parenthood’s right to challenge the state abortion ban.
A LANDMARK AND A TEST
In a second April 1 ruling, a divided 4-3 court approved a Nov. 5 ballot measure, Amendment 4, that could end government interference with women’s reproductive rights.
Francis wrote the dissent: “One must recognize the unborn’s competing right to life, and the state’s moral duty to protect that life.” (DeSantis appointed Francis twice; his first appointment failed because she was unqualified.)
The Planned Parenthood ruling has become a landmark both for its impact and for what it shows about individual justices. It should be a factor in voters’ decision to retain or reject Francis and Sasso, according to Ferris, the former trial judge.
“My expectation for all the justices on the Florida Supreme Court would be that they take their position seriously, and when presented with an issue of such tremendous importance as privacy, that they handle it honestly and forthrightly,” she said.
“I read this opinion and it just makes me angry because I don’t think it was an analysis of the privacy amendment, or of the law, that was legitimate,” Ferris said. “They had personal issues that entered into the decision and that’s really, really disappointing.
“I don’t know how you would discuss what they wrote in a way that would make it make sense,” she said.
As for Francis and Sasso, “if they wanted my vote, I would have expected those two justices to then say, ‘I understand what the majority is saying but I can’t agree with it.’”
Ferris said she might favor replacing merit retention with term limits, much like what Congress is considering for the unpopular U.S. Supreme Court. But what she’d most like is for an independent commission to take a close look at the current system and recommend reforms.
“I don’t know what the right answer is, but I think it’s beyond the time for some very smart people to sit down and talk about this.”
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