During U.S. Senate confirmation hearings last year, President Bush's appointees for the U.S. Supreme Court refused to answer any questions on contentious social issues. That was as it should be, conservatives lectured. The more questions they answered, the more they endangered their impartiality.
But what's good for the goose isn't good for the gander among Florida conservatives. Last month, the Florida Family Policy Council — the same group pushing the anti-gay marriage amendment — sent surveys to 350 judges and judicial candidates across the state, seeking their positions on everything from gay marriage to whether they were married with kids and what church they attended, if any. The surveys were to be returned to the FFPC's Orlando offices by Aug. 14 so the group could compile the answers and send them out to churches ahead of the Sept. 5 judicial primaries.
Whether or not judges should be answering these questions is an ethical quagmire. And wading right into the middle of it is John Stemberger, head of the FFPC. In addition to that title, he's also a member of the 9th Judicial Circuit Judicial Nominating Commission, a group whose purpose is to make recommendations to Gov. Jeb Bush on who should fill judicial vacancies in Orange and Osceola counties. Stemberger has said he asks the same questions he asks in the FFPC survey of JNC applicants, a practice some in the legal community deem highly inappropriate.
In 2002, the U.S. Supreme Court overturned state rules that prohibited candidates from announcing their views on some issues because such rules violated free speech. However, Florida's judicial canons still bar candidates from making promises about their future positions.
So when the FFPC asks candidates if they agree with the Florida Supreme Court that "prohibiting homosexual adoption does not violate the Equal Protection Clause of the U.S. Constitution," or questions on school vouchers, assisted suicide, parental consent for minors' abortions, candidates have to choose between ethical obligations and being painted as uncooperative by the religious right.
The FFPC survey does include a "decline to respond" choice, allowing respondents to show they think the questions are inappropriate. And questions dealing with Florida Supreme Court decisions are; lower-court judges are required to follow Supreme Court decisions, whether they agree or not.
Many judicial candidates aren't answering the surveys because of the ethical issues. "It's pretty clear `Stemberger` knows if anyone were to answer this, the `Judicial Qualifications Committee` will come down on the candidates," says Orange County candidate Steve Jewett. "I don't want to get hammered `by the religious right`, but I can't answer any of these questions."
Esther Whitehead, also running for election as an Orange County judge, feels the same. As Whitehead notes, her position on such issues doesn't really matter. "I've got to follow the law."
Orange County judicial candidates Jim Sears and Bill Hancock also say they aren't going to respond to the FFPC's survey.
The FFPC — an affiliate of James Dobson's Focus on the Family — isn't the only group mailing surveys. The Christian Coalition of Florida has one too, as do some gay rights groups, women's rights groups and labor unions, according to an article in the Miami Daily Business Review.
Like some of those groups, the FFPC is a nonprofit, which means it can't endorse candidates. But Stemberger can, if he's not speaking for the FFPC. And he has done so publicly. He picked Tom Gallagher over Charlie Crist in the GOP primary for governor. In addition to being a proponent of a constitutional amendment to ban gay marriage in Florida, Stemberger was also one of just a handful of speakers who urged Orange County not to include sexual orientation in an ordinance to prevent housing discrimination. Since homosexuals choose to be gay, he told the commission, there's no need for an ordinance to protect them.
In 2001, Gov. Bush appointed Stemberger, a trial lawyer who in the early 1990s was the state's GOP political director, to the 9th Judicial Circuit JNC. Stemberger told the Miami Daily Business Review that he asks similar questions of JNC applicants, which led Florida Bar past president Burton Young to call for his removal.
Young, who had a hand in establishing the JNC under Gov. Ruben Askew, says the idea was to keep politics out of the nominating process. "It's offensive," he says of Stemberger's survey. "The offensive thing is, he's using this as an end-around to find out personal views."
(Stemberger did not return phone calls seeking comment for this story.)
Other JNC members appointed by Bush have run into similar trouble. In 2004, news broke that the Rev. O'Neal Dozier — a Bush appointee to the Broward County JNC — was asking questions about whether applicants were "God-fearing" and attended church. Earlier this year, Dozier resigned (under pressure from Bush) from the JNC after calling Islam a "cult" on a radio firstname.lastname@example.org