> West Palm Beach Personal Injury Attorney – Firm History – Boca Raton Injury Lawyer

President's Page

A Message from John M. Howe
President, Palm Beach County Bar Association

John Howe

How Attacks on Judicial Neutrality Weaken Our Democracy

Living in the United States of America, we often take for granted what it means to live in truly functional democracy.  We tend to underappreciate our democracy because most of us have never had the experience of living in a non-democratic society or being ruled by totalitarian government or despot.  The people who founded this country had that experience and were resolute that their new government would never devolve into a monarchy, oligarchy or dictatorship.  So, they fashioned a form of government which would be comprised of three distinctly separate, co-equal branches. They also required the governments of its member states to be similarly structured.  The founding fathers recognized that with any more or any less branches of the new government, there would be either an endless stalemate, or one branch would overpower the other resulting in an unchecked oligarchy or a dictatorship.  The new government needed a third neutral branch, equal in standing with the other two, to serve as a neutral interpreter of all Constitutional controversies between the branches of government and citizens.  In order for this third branch, the Judiciary , to function in a neutral manner, it had to be as far removed as possible from political winds and whims so as to be pressured into to make only politically popular rulings instead of Constitutionally correct rulings.  Although they stopped short of requiring the states to do the same, the Constitutional framers decided that federal judges should never be subject to running for election or grappling for votes.  However, mechanisms were put in place for judges to serve under the oversight of the other two branches and to be removed from office by the legislature only for good reason.

In Florida, our system for installing or removing judges differs greatly from the federal system in that judges are not as insulated from political pressure.  Florida judges do not serve for life or for as long as they are mentally competent.  We have gubanatorial appointments and open elections for circuit and county court judges and merit retention elections for appellate judges.  Although Florida’s judicial elections are apolitical, the specter of having to run campaigns creates a seam  for politics to enter into our judicial process.  Even more insidious is the ever-growing sentiment across Florida and the country that, if a judge rules against your ideologic position, the solution is to accuse the judge of being an “activist” and wage a campaign to oust him or her from the bench.  In other words, if you don’t like the ruling, get a new judge.  We have also seen attempts by the legislature to change the rules of court and/or rendering the judiciary ineffective by de-funding it.  This is a dangerous and short-sighted approach by those who pursue it.  Without neutral, politically independent courts,  the individual rights of Floridians will  be trampled. 

It is always concerning when any governmental branch determines that it is entitled to control another branch.  This is not to be confused with the concept of checks and balances.  While each branch has specific duties and functions delegated to it by the constitution, the judicial branch is unique because judges are expected to interpret the law and Constitution independent of politics and without the fear of public retribution.  This is why in 1970s, Florida implemented merit retention and made it illegal for judicial candidates to use any partisan affiliation during elections.

The decision to implement merit retention for judges and to prohibit partisan involvement was not reached in a vacuum.  In the decades leading up to the amendment, it was a thinly veiled secret that judicial elections in Florida had become perverted by politics.  Justice was on the auction block, and the stench of the corruption became so overwhelming that the people of Florida saw fit to amend the state’s constitution and statutes in an attempt to extract the influence of politics from the judiciary.  This year, we are learning yet again that, even with merit retention, there are still openings for politics to enter.

In the upcoming elections, three Florida Supreme Court justices are on the ballot for merit retention.   There are some special interest groups who are organizing campaigns to unseat them – not because they have performed poorly, but because they disagree with one or more of their rulings.  This is not speculation about the groups’ motivations; it is their declared motivation .  This campaign against the justices closely resembles what happened in Iowa recently when several special interest groups successfully waged shadow campaigns against three state supreme court justices because they disagreed with a decisions on gay marriage. We should not allow this trend to come to Florida.

These special interest groups in Florida have stated that part of their strategy is voters not completing the entire ballot.  In elections past, justices and judges who were aptly performing were easily retained.  This year, even though you may believe a judge or justice is performing his or her duties well, failing to cast a vote to retain them could very well serve as a vote against them.  This election season, I would urge everyone who is eligible to: 1) Engage in the democratic by exercising your right to vote; and 2) Vote your entire ballot.  Your vote strengthens our democracy.

© 2012 Lesser, Lesser, Landy & Smith, PLLC. All rights reserved.