One of our graduates on the judicial bench is in hot water this week. Justice Barbara Pariente (GW Class of 1973) is facing demands from Florida Gov. Rick Scott that she be disqualified in a case over judicial appointments due to a comment caught on a live microphone. On November 1st, Pariente was caught pointing to a document listing members of the Supreme Court Judicial Nominating Commission and saying “crazy.” Update: As predicted, the high court rejected the effort to disqualify Pariente over her remark.
The motion for disqualification states cites this off-hand comment in the context of prior statements on the Court and during her campaign for reelection. The controversy comes as three justices — including Pariente — are required to leave the court at the end of their terms due to the mandatory retirement age. The three justices — Pariente, R. Fred Lewis and Peggy Quince — are all viewed as the core of the liberal wing of the Court. Scott wants to appoint their successors before he leaves office on Jan. 8, 2019, but the League of Women Voters have challenged that assertion in a critical case before the Court. The decision could be key since the liberals hold a slim majority on the 4-3 divided court.
After the arguments in the case, Pariente pointed to a piece of paper in a conversation with Chief Justice Jorge Labarga. Labarga is heard reading the name “Panuccio” and Pariente could be heard saying the word “crazy.” Labarga then says, “Izzy Reyes is on there. He’ll listen to me.” Pariente appeared to say, “Look whose pick they’re getting …” and turns to Quince and says “did you see who…”
The justices appear to be referring to a paper brought to the oral argument by Pariente that was passed around during the oral argument. After Scott’s legal team demanded the paper through the public records law, they found that it was a list of the governor’s appointees to the Florida Supreme Court Judicial Nominating Commission as well as the dates when each commissioner’s term is set to expire.
I think it was extremely unwise for Pariente to bring such a paper to the argument which is immaterial to the legal issues in the case. The names of new justices only raises the danger of bias in being considered in conjunction with the arguments. That is the point of the filing which states that “disqualification is . . . required because the actions and comments by Justice Pariente would place a reasonably prudent person in fear of not receiving a fair and impartial hearing.”
Scott also points out the fact that Pariente ran in 2012 by highlighting the danger of his appointing her successor. She warned that, if she were not retained, voters “will give Gov. (Rick) Scott the right to make his appointments, which will result in partisan political appointments.” The motion notes that the code of judicial conduct, which says that judges “shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.”
While Pariente’s conduct was problematic and frankly injudicious, I do not think that there is a strong case for disqualification. It is not clear what Pariente is referencing as “crazy” — whether it is the specific nominee or some aspect of the situation. She can view these nominees as subpar without impacting her decision on the law. Indeed, her view of the nominees should be immaterial. Moreover, I have long been critical of elected judges who by necessity engage in politics. This is the very reason why such campaigns raise endless ethical and political problems. Pariente has long been a lightning rod for the right, which waged a determined campaign against her. She responded to that campaign in seeking retention.
I think that Justice Pariente should acknowledge that it was unwise to bring the list to the oral argument and that any view of the individual nominees fell outside of the scope of the litigation. However, the facts presented in the motion present a difficult case for mandatory disqualification in my view.
What do you think?