Democracy Under Threat: The Attack Upon Our Independent Judiciary

October 30, 2012

By Stephen Masterson

A fair and independent judicial system is the foundation of our democratic system, but powerful forces are intent upon its destruction. Who is doing this? What foreign power has launched this subversive effort to undermine our system of government?

For at least the past fifty years politicians have been warning us that some foreign power is seeking to destroy American Democracy. Those of us with gray hair remember the constant warnings that the communists were trying to infiltrate the country and destroy our system of government. “Soft on communism” was a favorite slur. Now that the Soviet Union is a distant memory, the communist threat has been replaced with other imagined threats to our institutions of freedom.

So who is attacking American democracy by seeking to undermine the independence of our judiciary? Some of the attackers are difficult to identify. Secret money in politics is now legal in the aftermath of the U.S. Supreme Court’s Citizens United decision. Thus, in many cases we do not know who is financing the attack. So we cannot identify who is funding these efforts. However, in Florida one powerful group has come forward to attack our judicial system. The Florida Republican Party, in a historic departure from the trend of modern history, has called for, and launched a campaign aimed at, the removal of the three Florida Supreme Court justices who are standing for retention in this election. In one swift move, they reversed – or at least ignored – our rules requiring judicial races to be non-partisan.

The attack is not limited to individual justices. The legislature placed on the November ballot a proposed Amendment 5 to the Florida Constitution that, if passed, will drastically shift the delicate balance of power among our three branches of government. It will make the selection of Supreme Court justices a political battleground.

The current system provides that the judicial nomination commission present a list of nominees to the governor, who then appoints the new justice from that list. The legislature now wants you to give them the power to confirm by a 2/3rds vote such appointments. We have seen how that process works at the federal level where U.S. Supreme Court justices are appointed for life and are not subject to retention votes. Once on the bench, it is assumed they are above politics. The Florida GOP proposal, and the current campaign against three justices, guarantees that the Florida Supreme Court will become a permanently politicized institution. Further, this proposal will give the legislature the authority to overrule procedural rules created by the courts. Such rules govern the process of judging.

The judicial branch serves a critical function in our free society. Legislative acts must be reviewed by the Supreme Court to determine whether they are consistent with the requirements of the Florida and federal constitutions. As the branch structured to be above politics, its role is to buffer the effects of the political pressures of the moment. The courts are our anchor, keeping us steady when the winds of passion blow. By politicizing the court, the Florida GOP is seeking to dilute and diminish the role of the court, thus making the legislative and executive branches far more powerful. There is only one branch, the judiciary, which is designed to serve as the constitutional watch dog over the other two branches. Therefore when the judicial branch is weakened, so are the protections and rights provided by the Constitution.

1976 the people of the state of Florida voted to take politics out of the Supreme Court and district court elections by passing a constitutional amendment. This was a direct response to scandals that had engulfed the court. In the early 1970s one justice retired after being filmed on a junket to Las Vegas. Two other justices tried to fix cases on behalf of campaign supporters. Politics had corrupted our court. After the 1976 amendments (Art. V, Section 10), the Florida Supreme Court regained its credibility with the people and earned its place as one of the most respected courts in the country. Why? Because those amendments removed politics from the court.

The current actions by the Florida GOP are clearly a power grab. If our courts can be politically intimidated, the wealthy and powerful will be less accountable for their actions. Such acts are not unique to the GOP. The most famous attempt to attack the judiciary was President Franklin Delano Roosevelt’s court packing plan in 1937. Roosevelt was at the height of his power and popularity. The justices of U.S. Supreme Court at that time were primarily conservative appointees of the previous Republican Presidents, Harding, Coolidge, and Hoover. The courts struck down some of the New Deal legislation that Roosevelt and the Congress had passed to relieve the suffering brought on by the Great Depression. Roosevelt threw all his power and prestige into an attempt to alter the membership of the court, a scheme that would have resulted in the addition of several new justices. It was the biggest mistake of his political career. The public outcry in response to this proposal was dramatic. In Congress, Democrat and Republican alike worked to defeat the proposal. Even Roosevelt’s Vice President, John Nance Garner, famously communicated his disgust with the idea.

The current Florida GOP attack is just one of a series of such moves throughout the country. Judges have been the object of political campaigns in California, Iowa, Ohio, Wisconsin, Pennsylvania and other states. Editorial writers have frequently condemned such campaigns, but sadly not even a shadow of the public response to Roosevelt’s plan, which was far less destructive than what we are seeing in Florida today, has surfaced.

The Florida GOP has formally called for the removal of three fine Supreme Court justices. Their only stated justification for undoing the 1976 reforms and politicizing the judicial races is that these justices performed their constitutionally mandated duty to review a proposed amendment to the constitution for its compliance with the Florida Constitution. If this unholy enterprise is successful, it will send a message to our judges that, should they dare to rule in a way that displeases the GOP, then unlimited money will be available from unnamed sources to end their judicial career.

truth, the long term goal of the proposed Amendment 5 to the Florida Constitution is to make our courts political servants of the legislature. If you are nominated to the Supreme Court, you better have powerful political friends. If you can get through that process, you must look over your shoulder every time you decide a case, wondering if the undisclosed financial powers will be upset and end your career.

Ironically, the very group that has long warned us that foreign powers seek to destroy our freedom now seeks to cripple our most fundamental democratic institution. No foreign power has ever been a credible threat to our freedoms. Our constitution and our national values make such a threat extremely unlikely. What we are now witnessing is a much greater danger, the threat from within. When we have seen our institutions threatened, it has been in response to the passions of the moment. Our founders perceived that threat and designed the independent judiciary to stand as a counter balance to such passions. In the face of this threat, where is the America of 1937?

If we permit three fine justices — Justices Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince — to be removed and the legislature to diminish the judiciary, we will have only ourselves to blame. Americans have always felt that “having their day in court” was a sacred right. Who as ever asked for a “day in the legislature”? If our judges are not fair and independent, a day in court will be meaningless. Since 1976, Florida’s judicial branch has been the non-partisan branch of government. For the sake of the integrity of our government and our freedoms, we must maintain the independence and impartiality of our courts by not allowing Amendment 5 to pass or our justices to be threatened by partisan politics.

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