An independent court is at stake in Florida

On the day he was assassinated, Huey Long was manipulating the Louisiana Legislature to be rid of a judge who had blocked some of his schemes. The judge's son-in-law got him first.

An independent judiciary is to tyrants as sunlight to vampires. Unlike vampires, however, demagogues and dictators like Huey Long are a real — and constant — danger.

Alexander Hamilton made that point in one of the Federalist essays he wrote to persuade the people of New York to ratify the Constitution, which had been submitted to them 225 years ago this month.

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution," he said. "Without this, all the reservations of particular rights or privileges would amount to nothing."

Imagine the outcome of Watergate without an independent Judge John Sirica; without a Supreme Court unafraid to make a lawless president give up the proof of his crimes.

Now consider Florida's future if Gov. Rick Scott packs the state Supreme Court with new justices of his choosing. Scott has craved the opportunity since the 5-2 court opinion last year that stopped him from usurping the Legislature's rulemaking authority. Prison privatization and other significant cases are percolating up the ladder. The one involving drastic pension changes is already there. State or federal courts have now ruled against overreaching by Scott and/or the Legislature on at least 10 occasions in just two years.

So Scott's hand is evident in the Florida Republican Party's unprecedented decision to oppose the retention of three of those justices on the November ballot. It recalls the petty and spiteful attempt by some conservative Republicans to make an issue of the notary signatures on their election documents.

Florida history is a subject of obvious disinterest to Scott, but for the sake of voters who do care it's a pertinent story that begins in 1971.

The Legislature had already provided for electing judges on a nonpartisan basis, and Gov. Reubin Askew had already established a nominating commission system for interim appointments, when scandals at the Florida Supreme Court illuminated more work to do.

Four new justices had been elected in the usual way — by voters unfamiliar with them and favoring the first name on the ballot every time. A fifth, David L. McCain, had been appointed by lame-duck Gov. Claude R. Kirk Jr. despite the Florida Bar's fervent warning that McCain was unethical and likely corrupt.

McCain wasn't long in proving it. He was forced to resign five years later for trying to fix two cases in lower courts on behalf of his political campaign supporters. One was a bribery conviction, and there was evidence that McCain himself had been bribed.

One of the newly elected justices turned out to be a heavy gambler who resigned not long after the exposure of a Las Vegas high-roller junket. Within months of taking his seat, another tried to fix a circuit court case involving a campaign supporter, and he put to use a draft opinion secretly submitted to him out of court by a lawyer representing utilities in a major case affecting ratepayers. He eventually resigned as well.

Another of the elected justices had accepted the same draft opinion, in flagrant violation of the judicial code of ethics, and destroyed the evidence when he began to understand what trouble might result. When made aware of this misconduct, the other justices went along with a cover-up. None reported it to the responsible authorities. They did conduct a witch-hunt for the clerks they suspected of having tipped off the press.

It was evident to the governor, the Legislature and the public that politics was at the root of the Supreme Court's disgrace. The outcome was a constitutional amendment providing for all justices (and judges of the district courts of appeal) to be appointed rather than elected. But they must submit their names for voter approval at six-year intervals. This is why Justices R. Fred Lewis, Barbara J. Pariente and Peggy A. Quince are on the Nov. 6 ballot.

The 2003 death penalty decision to which the Republican Party attributes its opposition is a red herring, unmistakably resembling the Willie Horton issue of the 1988 presidential race. This one had no consequence because the U.S. Supreme Court reversed it. In any case the justices have upheld dozens of subsequent death sentences, often unanimously.

If the party succeeds in purging Lewis, Pariente and Quince, there's no longer any guarantee that their successors will be qualified, much less independent. Askew set up the nominating commissions so no governor could control them, but since 2001 the governors have been enabled to appoint all nine members of each. Three of his people already sit on the Supreme Court commission, and three other members are ripe for replacement, their terms having expired.

Whether to trust Rick Scott with the future of the Florida Supreme Court — and the liberties of all Floridians — is the real issue put to Florida by the Republican Party's shameful decree.

Martin Dyckman, a retired Times associate editor, is author of "A Most Disorderly Court: Scandal and Reform in the Florida Judiciary," published by the University Press of Florida.

An independent court is at stake in Florida 09/24/12 [Last modified: Monday, September 24, 2012 7:33pm]

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