My merit retention decisions: revisited

In my last post, I wrote about the merit retention decisions Collier voters face and explained why I planned to vote YES to retain all three Supreme Court justices and ten District Courts of Appeal judges on our ballot. A few days later, a reader made me aware of an article published the same day as my post that caused me to reconsider how I will vote on two of the Supreme Court justices on the ballot: Charles T. Canady and Ricky L. Polston (bios here).

That article, by Martin Dyckman in the SaintPetersBlog, is titled “Donald Trump pick Charles Canady could bring ‘dog whistles’ to SCOTUS.”

“Dog whistles”??

According to Dyckman, “Canady’s name … is a dog whistle to the anti-abortion lobby. As a member of Congress, he claimed credit for crafting the emotionally laden phrase ’partial birth abortion.’”

In “‘Partial-Birth Abortion:’ Separating Fact from Spin” in 2006, NPR reporter Julie Rovner wrote that then-U.S. Rep. Charles Canady (R-FL) used the term in a bill he proposed in 1995 that would make it a federal crime to perform a “partial-birth” abortion. She said the term had been initially coined earlier that year by the National Right to Life Committee (NRLC).

Also, Dyckman said, Canady and Justice Polston, “the court’s other frequent conservative dissenter,” both “dissented in April [2016] when the majority agreed to stay Florida’s latest anti-abortion law, a 24-hour waiting period, while the court decides whether to hear an appeal on the merits.” The Court is scheduled to hear oral argument on the case (Gainesville Woman Care v. State of Florida) on November 1. More here.

Dissenting in the LWVF’s Redistricting Case

Further, I was reminded by Dyckman, both Canady and Polston dissented when the Florida Supreme Court threw out, in December 2015, the Republican Legislature’s congressional redistricting maps because they violated the “Fair Districts” amendment approved overwhelmingly by voters in 2010. See League of Women Voters of Florida v. Ken Detzner.

One of Trump’s picks for the Supreme Court

Finally, from the Dyckman article, I learned that Canady is one of 21 people Donald Trump said he would consider as a potential replacement for U.S. Supreme Court Justice Antonin Scalia. In a September 23 press release announcing the list of people from whom he would pick, Trump stated:

“I would like to thank the Federalist Society, The Heritage Foundation and the many other individuals who helped in composing this list of twenty-one highly respected people who are the kind of scholars that we need to preserve the very core of our country, and make it greater than ever before.”

The Federalist Society, according to its website, is “a group of conservatives and libertarians …. founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be…. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.”

The Heritage Foundation, according to its fundraising page, is “the most influential conservative group in America.” The group’s main website is here.

My decision

As I noted in my previous post, 84 percent of Florida Bar members who know them said Justices Canady and Polston should be retained in their positions.

But I don’t like the positions they took on the issues brought to my attention by Dyckman’s article, and I am concerned about the implications of Canady’s inclusion on the Trump list. So I struggled with the question “Should my merit retention vote be based on whether or not I like a justice’s interpretation of the law, or should it be based on his qualifications for the job and whether or not he is a ”good” judge?

According to the Florida Bar’s “Guide for Florida Voters: Answers to Your Questions about Florida Judges, Judicial Elections and Merit Retention”:

“Judges must be impartial, fair and understand the law. All judges may deal with cases that are either civil or criminal in nature. Knowledge in one particular area is not more important than the other. Judges should be selected based on their legal abilities, temperament and commitment to follow the law and decide cases consistent with a judge’s duty to uphold the law regardless of his or her personal view.”

That helped. Based on their dissents in the two cases mentioned, I don’t trust Canady and Polston to be impartial in deciding future cases that could come before the Florida Supreme Court relating to women’s access to abortion and reproductive health care, and Fair Districts – issues I care a lot about.

As a result, I will vote NO on the retention of Justices Canady and Polston, and YES on the others on my ballot.

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