Judge Who Sided With Gore In 2000 Recount, Faces Ballot Test

By Jim Burns | July 7, 2008 | 8:29pm EDT

(CNSNews.com) - Harry Lee Anstead, the chief justice of the Florida Supreme Court and one of four justices who ruled in favor of former Vice President Al Gore in the controversial 2000 presidential election recount, faces a merit test at the ballot box this November. But the few campaigns originally organized to oust him, have faded away.

Anstead, a Democrat, will be on the November ballot in what is known as a "merit retention election." This means voters will decide whether he will remain on the Sunshine State's high bench. Florida voters have never removed a justice from the state Supreme Court since this type of election was instituted in 1980. Lower appellate court judges have been subject to the elections since 1978.

Two Florida newspapers predict Anstead will be retained.

All Florida appeals court and Supreme Court judges appointed by the governor, are subject to a merit retention vote every six years. A majority of voters must support the candidate for an additional six years. If not, the governor appoints a new justice with confirmation from the Florida state Senate.

These officials, first appointed by a governor, face no opposition in the elections - just an up or down decision by voters.

Back in 2000 at the height of the controversy over the presidential election results in Florida, Anstead ruled as part of a four-member majority to order a statewide recount of thousands of so-called under-votes. The decision was considered a major victory for Democrat Al Gore. However, the U.S. Supreme Court eventually overturned that decision, ended the recount and allowed George W. Bush to claim victory.

None of the three judges who sided with Anstead in the recount decision are on the November ballot, but will face merit tests in 2008.

Anstead was not chief justice at the time of the Gore decision. He became the state's 50th chief justice last July replacing Charles Wells, who had presided over the high court at the time of the election dispute. Anstead was appointed to the high court in 1994 by then Gov. Lawton Chiles, a Democrat.

A recent poll of about 6,000 members of the Florida Bar Association showed that 82 percent of the participating lawyers recommended keeping Anstead.

Members were asked to base their decision on eight attributes: Quality and clarity of judicial opinions, knowledge of the law, integrity, judicial temperament, impartiality, freedom from bias and prejudice, demeanor, and courtesy.

At the time of the Gore decision, many Floridians were calling for Anstead's ouster.

But many of the anti-Anstead campaigns set up during the 2000 election recount, like "Balance The Bench" and the one set up by the Christian Coalition of Florida appear to have fizzled. The websites that were set up for those campaigns no longer exist.

"They lost steam because of who ultimately won the election," said Steve Gey, a law professor at Florida State University in an interview with the Fort Lauderdale Sun-Sentinel.

"The groups may not have been able to rally much support because the court did what it was supposed to do, make a ruling based on the law, not the political beliefs of the individual justices," Gey said.

"Retention elections shouldn't be about the ideology of justices; it should be about whether a judge is following the law to the best of his or her judgment. If the answer to that is yes, then the public should vote yes for retention," he said. "You're not supposed to vote no on retention because the judge is following the law and you don't like the law."

Ken Connor, now president of the Family Research Council, as an attorney in Florida tried to turn out two justices including Anstead after a 1989 ruling overturned a parental consent law. He believes the state's merit retention elections have become tantamount to permanent appointments for judges.

"Not one single judge in the history of merit retention has ever been un-retained. You don't have a candidate that's running against the judge and the judge's record is not called into issue. The voters have no earthly idea who the governor would replace the judge who was un-retained with," said Connor in an interview with CNSNews.com.

"The reality of it is ... that it is an election in name only. The way the thing is set up means it's functionally going to be the equivalent of a career appointment for a judge," he said.

While refusing to comment about Anstead directly, Connor said he doesn't think the Gore ruling will be an issue in the November election.

"Lawyers won't speak out against judges because in Florida, the Supreme Court is the chief regulator of the Florida Bar (Association)," he said.

"You can't get lawyers to speak out on a judge's record, and it's hard to command any attention because the gubernatorial race dominates the election. There is virtually no chance that any sitting judge will be un-retained," Connor said.

The Christian Coalition of Florida did not return several phone calls Friday seeking further comment on this story.

People for the American Way, a group that fights to keep conservative judges off the courts all over America, would not comment on this story. A spokesman said Friday he didn't think Anstead's election was worthy of comment and didn't think CNSNews.com should "waste its time" reporting on the issue.

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