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The Florida Republicans and the Independence of the Judiciary

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Written by Winston P. Nagan   
Tuesday, 16 October 2012 05:27
Three justices of the Florida Supreme Court have been the target of the Florida Republican party. They are targets because in a particular case, they decided in a manner that the Republican Party deems offensive. The Republic Party’s executive board voted unanimously to oppose the Florida Supreme Court justice’s for re-election to the court. The Republicans cite an alleged grievance that these judges are judicial activists. The specific issue they cite is a 2003 ruling, which gave a convicted defendant a new trial on the basis that the defendant’s lawyer was ineffective in providing a professional appropriate defense. The justices are Lewis, Pariente and Quince. One is male and two are females.
Florida chooses to elect judges for service on the bench. While this procedure may appear to have elements of legitimacy, it is a procedure that has an awkward fit for service on the bench. In fact, the most important expectation of service on the bench is that judges be independent, impartial, and neutral with respect to the causes brought before them. The electoral process injects an element of politics into the process. Does this mean judges must generate campaign finance while at the same time, serving on the bench? Would the gifts from the notorious Koch brothers or Donald Trump generate the sense that the judges are not seen to be neutral but serve for the beneficence of the Plutocrats?
Moreover, it would seem to be an odd element of the judicial role if the judge were to actively politically campaign in an election, making promises that cannot anticipate what actual cases or controversies would emerge which requires judicial intervention. It is for this reason that in the 1970s the state created a merit selection and retention system, to insulate so far as possible, the judicial system from the ordinary political process. No justice has been removed from the bench since the merit retention system has been put in place. The current system is a delicate system and requires some elements of political restraint from active partisan political interests groups. This form of restraint is completely lacking in the decision of the Republican executive board of Florida. Moreover, it is a decision that demonstrates complete ignorance of the importance of the rule of law for the State of Florida and the equally important principle of judicial independence, which is a requirement for an independent judiciary in a democracy.
Let it be said at the outset that the campaign currently launched against Justices Lewis, Pariente and Quince is a campaign that is in effect a scurrilous attack on the principle of meritocracy on the bench. In my view, as a law professor, I consider these justices to be great jurists and outstanding judges. Their stature as judges is a function of exemplary temperament and outstanding legal and professional skills, as well as courageous and sound judgment.
The principle of the independence of the judiciary is compromised when political groups with a partisan and ideologically driven agenda, may target any decision by the judges to be one that requires a political campaign to ensure that they are replaced. It is a pity that a political campaign supported by money outside the State of Florida should be used to target, intimidate, and inappropriately influence a weakening of the important value of the independence of the judiciary. It should be noted that in running such a campaign, the judges themselves are not vested with political parties and special group backers to tell their side of the story.
The most fundamental principle at stake here is the critical importance of the independence of the judiciary as one of the pillars of a rule of law based democracy. The central feature of a democracy is the conflict-conditioned give and take between the various interest articulators. Some of these conflicts generated by the vibrancy and dynamism of the social process require independent and carefully considered processes for the judicial settlement of disputes between citizens. Central to the working of this process is the neutrality of the jurists, the fact that they are and must be seen to be independent of any partisan or particular form of direct interests or coercion from outside forces. The Republican position in this regard in the State of Florida is completely indefensible. If they were patriotic, they would rescind their unfortunate resolution and would immediately call off the campaign for the removal of certain Florida Supreme Court judges. They should publicly apologize to those judges, and urge the voters to affirm the merit retention system of which these judges are excellent examples.
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