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Guest Dispatch: Florida Supreme Court Merit Retention Election Goes Political, You Be the Judge

We have a new Guest Dispatch from South Florida Attorney Juan O’Naghten. It involves the upcoming Florida Supreme Court merit retention election and a recent e-mail fundraising plea from one of the Justice’s supporters, a former member of the court. Citing Federalist Papers co-author Alexander Hamilton, Justice Barbara Pariente’s campaign, and former Justice of the Florida Supreme Court, Raoul Cantero, e-mailed a fundraising letter to potential donors on the importance of a non-politicized judiciary. But you need to go beyond the e-mail for facts. Really.

Justice Pariente is one of several liberal  judicial activists on the Court who has voted against property rights, school choice, and many other legislatively-decided matters. She also voted against allowing Floridians to vote, up or down, a Healthcare Freedom Amendment (this was the Florida Legislature’s effort to block ObamaCare from being forced on the state by the Federal government). You can read all about it at You Be The Judge.

Mr. O’Naghten had a good thing, or two, or three, to say about the fundraising e-mail from Justice Pariente’s campaign. With permission, his response is re-printed below. The fundraising e-mail is included at the very end of this post and, folks, I do not think there will be any donations forthcoming from Mr. O’Naghten, or any of the many other lawyers that he e-mailed. — Jason I. Poblete, Esq.

South Florida Attorney Juan O’Naghten Weighs in on the Florida Supreme Court Merit Retention Race of Justice Barbara Pariente

Dear Raoul,

I received the below e-mail the other day. I wish I could support you in this matter, but the judiciary in the United States has evolved in such a manner which makes that impossible.

The judiciary in the United States has a long and honorable tradition of functioning as an independent branch of government. Indeed, Federalist Paper number 78, authored by Alexander Hamilton, acknowledged that “[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution.” Hamilton considered the judiciary the weakest of the three branches of government because it “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” This was predicated on his understanding that “[t]he interpretation of the laws is the proper and peculiar province of the courts.”

Yet the judiciary has, since the mid-20th century, set for itself a separate and distinct course of action which is not limited to the interpretation of the laws. It has commandeered for itself the role of conclusive arbiter of proper public policy and has used the deference granted to it by the political branches to mold society in its image and likeness. We can start with the Traynor court in California.

In Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453 (1944), Justice Traynor and his court pronounced, in derogation of the state of the law as it then existed, that “[e]ven if there is no negligence, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market” thereby appropriating for the California Supreme Court the duty of determining public policy, presumably to the exclusion of the legislature. The Traynor court of California led the rest of the United States into a judicially engineered restructuring of the allocation of risks incurred by engaging in commerce.

Regardless whether you concur with the result, you have to acknowledge that the Traynor court reached its conclusion without undertaking the fact-finding and public comment process generally observed by legislative and administrative rule makers. In fact, it reached its result based on its best guess as to the proper outcome. And the result of this process is that we now buy ladders with labels saying that we will be injured if we fall from the ladder.

This trend continued unabated throughout the balance of the twentieth century and into the twenty-first, perhaps best exemplified in Roe v. Wade, 410 U.S. 113 (1973), where Justice Harry Blackmun arrogated to himself and the six justices that concurred with him the knowledge of when life begins. Let us set aside that science has disproven, if in fact it ever supported, his determination that human life does not exist in the first trimester of a pregnancy. His decision removing this most basic of issues from the political process has misshapen political speech and process in the United States for the past 40 years. The arrogance continues to this date with courts deciding to redefine the nature of marriage, an institution that predates the existence of courts, and generally in the face of overwhelming public opposition.

The judiciary has decided to wade into the field of determining “proper” public policy without any public debate on the issue, simply making pronouncements by fiat, unchallenged because of the political deference granted to the judiciary. Accordingly, it needs to accept the fact that it is a political actor and should be willing to submit itself to the same processes as any other political actor in a participatory democracy. One of those requisites is that it be subject to the participatory political process to assure that its decisions are politically accountable and consistent with the demands of the society which the courts intend to regulate.

Those involved in Latin America, and with Cuba specifically, well understand the importance the rule of law and of an independent judiciary in the proper implementation of the rule of law. It is for that very reason that Castro created the Revolutionary Tribunals to judge those alleged to have committed crimes against the state – in effect, the judiciary became part and parcel of the repressive machinery of the regime. But at least, in these most repressive of regimes, the judiciary is subordinate and accountable to the prime political actor, the regime itself.

In the United States, we are slowly approaching the reverse, a regime of the judiciary. All of us lawyers remember with a smile what we learned in our first year of law school – the Supreme Court is not last because it is right, it is right because it is last. And in setting itself up as the last arbiter of proper public policy, the courts have introduced themselves into the realm of politics and should not now complain about the consequences.

I have the utmost respect for you and the opinions you authored while on the bench. Unfortunately, you are not representative of your brethren. It is for the foregoing reason that I have reluctantly decided to follow the suggestion of the Republican Party in respect of the judges mentioned. I have copied some friends on this e-mail so that they can make their decision after reading both of our arguments.

Best regards,

Juan T.

Dear Juan,

Many of us in the legal community have been warning of the perils of a politicized judiciary. For those of us who believe in a fair and impartial judiciary, the last week has been disheartening and disappointing.

First was the Republican Party of Florida’s unprecedented decision to actively oppose the merit retention of Florida Supreme Court Justices Pariente, Lewis, and Quince. On Tuesday, Americans for Prosperity, a group financed by billionaires Charles and David Koch, began running ads against the justices.

As a former justice of the Florida Supreme Court, I can tell you I’ve never been more concerned about the future of our justice system. If this effort succeeds, the judiciary will become subject to the same partisan politics as the other branches of government – precisely what both the federal Constitution and the merit retention system were designed to avoid.

Help us protect our fair and impartial judiciary by contributing right now: contribute $50 today.

Your support will fund efforts to ensure Floridians understand the importance of protecting our merit retention system.

As Alexander Hamilton wrote, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” The merit retention system has worked; we have an impartial judiciary that upholds the constitution and defends the rule of law without regard for the passing fancies of partisan interests.

Though we agree with some decisions and disagree with others, we are confident knowing that all decisions are made without the encroachment of political influence.

Stand up to preserve our merit retention system and keep partisan politics out of Florida’s courtrooms. Contribute right now.

Sincerely,

Raoul G. Cantero,
Former Justice, Florida Supreme Court

  • arthur freyre

    Great article from Mr. O’Naghten. There are two thoughts in response to this article.

    The first thought is that merit selection process and judicial elections in Florida should be abolished. While there is good intent in having both merit selection and judicial elections, the fact is that judicial elections are the least voted upon and those that vote are usually attorneys, family members, and relatives. This exposes the judiciary to special interest.

    The second thought reflects what is taught in law school. Unfortunately, law students have been taught the notion that we, the lawyers, are the defenders of the Constitution. The truth of the matter is that the lawyers are not the only defenders of the Constitution. Instead, it is the people of this country that are the keepers and the defenders of our Constitution.

  • Time has come to seriously consider doing away with elections for Florida Supreme Court judges.

  • I heard somebody talking about this on the radio yesterday, but I can¡¯t remember what station it was.

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