Partisan politics has no place in judicial retentions

As older judges retire from Florida’s appellate courts, Gov. Ron DeSantis replaces them with people chosen for their right-wing leanings and Federalist Society credentials. But age-related attrition just isn’t fast enough for some in the Republican Party. They want to purge perceived liberals from the bench, even though judicial elections are nonpartisan by law.

In Tampa, the Hillsborough County Republican Party tells supporters to oust Supreme Court Justice Jorge Labarga and four judges on the Second District Court of Appeal. Across Tampa Bay, Pinella’s Republicans also weighed in against Labarga but not the others.

In its own mass mailings, the Hillsborough Democratic Party recommends “yes” votes for Labarga and the four targeted district judges and “no” votes against the four Supreme Court justices and four district judges whom the Republicans endorse.

It’s not clear which party started it, but to their credit, Pinella’s Democrats are staying out of it.

“Personally, I don’t believe in parties endorsing judges,” Lucinda Johnston, the Pinellas Democratic chair, told the Tampa Bay Times. “Judges should not be partisan at all.”

She’s 110% right.

Unfortunately, Florida’s courts are becoming politicized as almost as DeSantis and his judicial nominating commissions can manage it. A pattern that began under former Gov. Rick Scott has profoundly corrupted what voters were promised when they agreed in 1976 that appeal judges should be appointed rather than elected.

Once appointed, they earn new six-year terms in retention elections where a voter’s choice is a simple “yes” or “no.” None has ever been voted off the bench. Ten years ago, when the entire Florida Republican Party opposed three justices, they were retained with more than two-thirds of the vote. It was their mandatory retirements six years later that enabled DeSantis to turn the court sharply rightward, cheered on by big business and its legal allies.

The Florida Chamber of Commerce has formed a council of corporate lawyers to fight what it calls lawsuit abuse against businesses. Its chairman is Jason Gonzalez, Tallahassee managing partner at Shutts & Bowen, a firm with clout in the governor’s office and legislature.

Five Shutts & Bowen lawyers sit on judicial nominating commissions, or JNCs, that recommend judicial finalists to the governor: Daniel Nordby on the Supreme Court JNC; Benjamin Gibson on the JNC for the First District Court of Appeal; John Meagher for the Third DCA; Eric Yesner on the Fourth DCA, which includes Palm Beach and Broward counties; and Ashley Hudson for the 12th Circuit in Sarasota. All but Hudson were appointed directly by DeSantis rather than from slates recommended to him by the Florida Bar.

Renatha Francis, DeSantis’ latest Supreme Court appointee, was a Shutts & Bowen lawyer for six months before becoming a Miami-Dade county judge, her first step in a very rapid rise.

Ironically, four of the five judges whom the Hillsborough GOP want to vote out were appointed by a Republican governor. That governor was Charlie Crist, now the Democratic nominee against DeSantis in next week’s election.

Crist appointed Labarga and Second District Judges Patricia Kelly, Nelly Khouzam and Robert Morris. Lawton Chiles, the last Democratic elected governor, appointed DCA Judge Steven Northcutt.

Crist also appointed two arch-conservative Supreme Court justices whom the Republicans support and the Democrats oppose, Charles Canady and Ricky Polston.

The Sun Sentinel editorially recommended that voters not retain four Supreme Court justices and one judge on the Fourth District Court of Appeal, Edward Artau. Our arguments are based on their decisions and judicial philosophies, not partisan politics.

We remain troubled by an assertion by DeSantis made on Hugh Hewitt’s radio program in which the governor said he relies on advice from “six or seven pretty big legal conservative heavyweights” in judicial appointments. The claim is now the subject of a public records lawsuit filed by a private citizen against DeSantis in state court.

The partisan Republican opposition to Labarga and Khouzam, Kelly, Morris and Northcutt likely owes less to who appointed them than to their reputations as moderate and thoughtful jurists. The Second District’s jurisprudence is thought to be an underlying reason why Canady, the Legislature and DeSantis added an unnecessary Sixth District Court of Appeal despite declining caseloads at the other five.

Recently, a Second District panel reinstated two lawsuits against the international law firm Morgan, Lewis and Bockius over illegal tax shelters that left plaintiffs deeply in debt to the IRS. Northcutt was one of the judges who held that a trial judge dismissed the cases improperly and wrote one of the opinions. Morgan, Lewis and Bockius advised, among others, Donald Trump and the Trump Organization.

The judges targeted by the GOP are among the highest-rated in the Florida Bar’s 2022 merit retention poll. Most of those the Republicans favor are among the lowest-rated. The poll credits ratings only from responding lawyers who say they have either considerable or at least limited knowledge of the judges. Only judges on the retention ballot are rated.

Khouzam was the highest rated of the 33 judges. Among only those who said they had considerable knowledge of their performance, 90% favored their retention. Northcutt was tied for second at 89%. Labarga came in third at 87%. Morris scored 86% and Kelly 80%.

By comparison, Jamie Grosshans, a recent DeSantis appointee to the Florida Supreme Court, was rated lowest, at 55% support among those who knew her best. Polston scored 72%, Canady 69%, and Justice John Curiel 62%.

Those tepid ratings are among the lowest the Bar ever posted. They likely reflect concern among lawyers over the extent to which the nominating panels and DeSantis have damaged a judiciary once highly regarded nationally for its political independence.

The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at [email protected].

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