Former Florida Gov. Jeb Bush’s positions on some issues, such as immigration, have been to the left of other members of the GOP presidential field. But last month, Bush laid down a marker on his own conservatism: his selection of conservative judges.
"I have a proven record of appointing conservatives to the Florida judiciary as governor, and my administration devoted substantial time to vetting nominees," Bush wrote in an article for Medium. "We sought judges who had shown humility, courage, an appreciation of the duties of a judge, a respect for the will of the people, and devotion to full application of the law without equivocation. My two appointments to the Florida Supreme Court, Raul Cantero and Kenneth Bell, have earned reputations as its most consistent conservatives. Additionally, two of the appellate judges I named as governor, Charles Canady and Ricky Polston, are now serving with distinction on the Florida Supreme Court."
We wondered whether Bush was right that Cantero and Bell "have earned reputations as its most consistent conservatives." Our research suggests that Bush has a point, though the case is stronger for Bell than for Cantero.
We will note that Bush’s Medium article misspelled Cantero’s first name. It’s actually Raoul.
Second, due to a grammatical misfire, what Bush wrote was somewhat misleading. Saying that Bell and Cantero "have earned reputations as (the court’s) most consistent conservatives" suggests that Bell and Cantero continue to serve as justices. That’s not the case -- both left the court to take positions in the private sector in 2008, almost eight years ago.
Though Bush can hardly be blamed for their early departures from the court, it does mean that his successor, Charlie Crist, got to nominate their replacements. As it happens, though, their replacements were Canady and Polston -- the two other judges whose appointments Bush takes credit for in the Medium article.
About the Florida Supreme Court
Though Republicans have long had strong majorities in the Florida Legislature and haven’t lost a gubernatorial race in the state since 1994, the state Supreme Court has been a somewhat surprising bulwark for Democrats in recent years.
The last Democratic governor, Lawton Chiles, appointed three of the seven members in 1997 and 1998 -- Barbara Pariente, Fred Lewis and Peggy Quince. Quince’s appointment was complicated; Chiles chose her, but due to the timing of judicial and gubernatorial terms, Bush ended up being the one to officially install her. (Bush’s role in the appointment of Quince -- who’s seen as a liberal -- may muddy his conservative bona fides to some, but the scenario was such an unusual one that we’ll set it aside in this analysis.)
The other four justices currently on the court were named by Crist, who was elected as a Republican but later became an independent while in office and ultimately made an unsuccessful run for governor as a Democrat in 2014. Crist’s two picks from the early part of his tenure -- Canady and Polston -- are generally considered to be conservatives. His two later picks, Jorge Labarga and James Perry, are generally considered moderate to liberal.
All told, then, under its current makeup, the Florida Supreme Court tends to lean moderate to liberal -- certainly more so than either chamber of the Legislature or the current governor, Republican Rick Scott. In fact, under the current court, 5-2 decisions -- with conservatives Canady and Polston in the minority -- have become rather common. Notably, the court -- with Canady and Polston in dissent -- has taken an aggressive stance on redrawing legislative and congressional districts that had been drawn by Republicans.
Bell and Cantero in context
We found general agreement that both Bell and Cantero were conservative, though Cantero perhaps less "consistent" than Bell, to use Bush’s word.
On the one hand, when Cantero stepped down, the Tampa Bay Times called him "one of the high court’s two most conservative judges." The Associated Press called him "one of its most conservative members." The Ocala Star-Banner called the two justices "reliable conservative voices," noting their dissents in a 5-2 decision in 2006 that overturned a school voucher program supported by Bush. In 1993, Cantero wrote a letter to the editor of the Miami Herald that defended anti-abortion protesters, saying, "Abortions kill children," the Times reported.
The Bush campaign also pointed us to a web posting by the Judicial Crisis Network, a conservative legal advocacy group that described Bell and Cantero as "widely regarded as conservative in their judicial philosophies."
On the other hand, Cantero had an "unpredictably independent" streak, the Times wrote on his retirement: "He blasted a Bush privatization measure, in which private attorneys with little-to-no criminal law experience were being hired to replace public defenders for death row inmates. Cantero called their performance some of ‘the worst lawyering I've seen.’ "
Indeed, the death penalty is probably the issue on which Cantero has deviated most from traditional conservatism. Cantero authored the majority opinion of State of Florida vs. Steele (2005), which ruled that unanimity should be required for jury recommendations of death sentences. Bush expressed openness to the idea, but the Legislature never acted, and hasn’t since. Indeed, from the private sector, Cantero has continued to urge unanimity in death penalty cases, including a 2012 Miami Herald op-ed he co-wrote.
Cantero also joined a unanimous decision -- along with Bell -- to overturn a law supported by Bush and the Legislature to reinsert a tube into Terri Schiavo, a brain-damaged patient whose case became a cause celebre, especially for some social conservatives.
"It was a proud moment for us that we were able to reach a unanimous decision," Cantero told the Associated Press at the time. "We were able to work through the issues dispassionately."
Bush said, "My two appointments to the Florida Supreme Court, Raul Cantero and Kenneth Bell, have earned reputations as its most consistent conservatives."
Bell and Cantero were certainly the most conservative members of the court when they were serving on it. However, Bush could have phrased his statement more carefully, to avoid suggesting that they are still on the court. Also, Cantero did sometimes break ranks with the traditionally conservative position, such as on the death penalty.
The statement is accurate but needs additional information, so we rate it Mostly True.
Jeb Bush, "Realigning the Courts with the Constitution" (Medium post), Jan. 24, 2016
Florida Supreme Court, list of justices, accessed Feb. 10, 2016
Judicial Crisis Network, Jeb Bush page, accessed Feb. 9, 2016
Raoul Cantero and Mark R. Schlakman, "Florida ignores ‘unanimous jury’ legislation in death penalty cases at its peril" (Miami Herald op-ed), 2012
Ocala Star-Banner, "With justice's exit, Crist can reshape state court," May 24, 2008
St. Petersburg Times, "First Hispanic justice resigns from state Supreme Court," April 11, 2008
St. Petersburg Times, "Selection a swipe at activist high court," July 11, 2002
Orlando Sentinel, "Gov. Bush Taps New State Supreme Court Justice," Dec. 31, 2002
Orlando Sentinel, "Another justice leaving Florida Supreme Court," May 24, 2008
Associated Press, "Bush Taps Pensacola Judge For Florida Supreme Court," Dec. 31, 2002
Associated Press, "Supreme Court's 1st Hispanic justice to resign in September," April 11, 2008
Sunshine State News, "For Florida Supreme Court, Ideology Counts: 5-2," Nov. 29, 2011
Email interview with Susan MacManus, University of South Florida political scientist, Feb. 9, 2016
Email interview with Aubrey Jewett, University of Central Florida political scientist, Feb. 9, 2016
Email interview with Matt Gorman, spokesman for Jeb Bush, Feb. 9, 2016
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