In the eye of the hurricane: Florida courts, judicial independence, and politics.

• Author: Lanier, Drew Noble

1. INTRODUCTION

   Underlying many of the shrill arguments made in the aftermath of the 2000 presidential vote in Florida were questions regarding judicial independence. The concept of judicial independence is often expressed in absolutist terms, but the reality is more complex. Courts, regardless of their rhetoric, are political institutions, born of politics and subject to political whims.

   Florida state courts are no exception. This Article connects the historic events of the 2000 presidential election to the larger question of how to balance what are often seen as incompatible variables: judicial independence and political accountability. (1)

   The political and legal wrangling surrounding the 2000 presidential elections crystallized long-brewing public animosity towards the judiciary, particularly the Florida Supreme Court, perceived to be out-of-step politically with the rest of the state government. In this Article, we will discuss the concept of judicial independence, the political nature of courts, and efforts to insulate courts from the ordinary politics engulfing the popularly elected branches. We first review Florida's political history and changing political landscape. We then trace the development of the state's judicial selection processes and tie those processes to current legislation that the Florida legislature has considered and, in some cases, enacted in the wake of the 2000 Presidential election. Finally, we consider the likely consequences of efforts to diminish the insulation that the Florida courts enjoy from the politics of the day.

2. JUDICIAL INDEPENDENCE

   1. Politics Defined and Judicial Politics Explored

      The key to understanding questions of judicial independence is to appreciate the political nature of courts. When we use the word "politics," we do not employ its pejorative variant. Rather, the definition we attach to politics is derived from the understanding that courts influence the policy-making process. In particular, we adopt the conventional definition of politics in our field: the process by which authoritative decisions are made about the allocation of goods in society. (2) Under this definition, judges have discretion, grounded in their respective jurisdiction, as to what judgments to render and whose interests to protect. They can support certain policies and outcomes while opposing others. Courts throughout the United States do so on a daily basis without arousing much public interest or controversy. (3)

      While courts are certainly political institutions, they are also legal institutions that differ from the other political branches. Courts operate within a field of bounded discretion due to pre-existing rules that govern their decision-making. These include procedural and evidentiary rules that limit how and when courts can act and constrain a court's options when issuing a decision. Those rules inure to the legal system's benefit in that litigants and the public can generally anticipate how a court will react. This consistency gives the judiciary a greater legitimacy than that of the relatively unpredictable executive and legislative branches. Periodically, courts and their decisions captivate the public's attention. When their decisions are viewed to contradict the interests of the public, their behavior is often discussed at length. (4) In those highlighted situations, the policy-making power of the judiciary becomes apparent to even casual observers who may vigorously oppose the policy interests annunciated in the court's decision. This dynamic certainly was apparent during and following the presidential election in 2000. After that election, serious questions of judicial independence still linger.

   2. Judicial Independence Defined

      Judicial independence in America often resembles the proverbial elephant being examined by four blind men. Each reports a description of the beast based on touching the elephant in only one area. Judicial independence experienced a similar fate during the 2000 presidential election. The struggle over which candidate, Republican George W. Bush or Democrat Al Gore, received the most popular votes in Florida, and thus who would become president of the United States, heightened awareness of judicial independence.

      When partisans begin to attack the legitimacy of the courts' decision-making power, questions of judicial independence become relevant. Many laud the independence of the judiciary without really knowing what judicial independence entails. (5) To understand the political nature of courts as a policy-making arm of the government, the term "judicial independence" must be clearly understood. Becker defines judicial independence as follows:

      Judicial independence is (a) the degree to which judges believe they can decide and do decide consistent with their own political attitudes, values and conceptions of judicial role (in their interpretation of the law), (b) in opposition to what others, who have or are believed to have political or judicial power, think about or desire in like matters, and (c) particularly when a decision adverse to the beliefs or desires of those with political or judicial power may bring some retribution on the judges personally or on the power of the court. (6) For our purposes, the last element is key: judges must not be unduly limited in their decision-making by external influences. Accordingly, "judges who are free from potential domination by other branches of the government" (7) are judicially independent. This independence becomes the touchstone of the courts, because without it, no one would agree to the judicial resolution of their dispute. The judge's initial neutrality is necessary even though ultimately the court favors one party over the other. (8)

      Becker specifically defines the structural elements that must be present for courts to be independent. (9) Their salary cannot be reduced while in office. They must have a fixed tenure (for a specific term of years or life) rather than having their employment be subject to the caprice of some other political actor (notably the executive). Finally, they must be selected either through executive appointment that is checked by some other actor or through direct election. (10) The federal courts, for example, meet each of these criteria. (11)

      Florida state courts, however, satisfy only two of the three elements. The judges of the state's highest court and the intermediate courts of appeals are selected under the merit system, or the so-called Missouri Plan. (12) Because extra-governmental actors are included in the selection process (at least ostensibly), there is some measure of independence provided to the judges of these courts. (13) In fact, in 1976 Florida voters opted to change the judicial selection method for the district courts of appeal and the supreme court from non-partisan election to the merit system in an attempt to bolster the political independence of the judiciary. (14) Circuit and county court judges, on the other hand, are selected in non-partisan elections and serve four-year terms. (15) Thus, for all four levels of courts in the judicial hierarchy, Becker's second and third indicia of judicial independence--fixed tenure and selection by either election or checked executive appointment--are satisfied.

      While the state's constitution and statutes provide some measure of tenure protection, none of the judges in any of the state's courts have salary protection. Only one section of the Constitution even hints at such insulation from political retribution and even then the protection may be illusory. (16) Members of the judiciary therefore enjoy some measure of salary protection at least until the legislature meets again and amends the general law of the state. Hence, according to Becker's definition of judicial independence, Florida courts are not as independent as federal courts and many state courts where all three elements, including salary protection, are satisfied through constitutional provisions, statute, or tacit practice. This lack of judicial independence pre-dates the events of 2000 but did not impact the courts because the public conflicts were muted. The lack of salary protection, however, means that the courts are more readily disciplined than even most legislators previously understood. Florida's state lawmakers are now well aware of this fact due to the events of the 2000 election.

      III FLORIDA'S POLITICAL HISTORY: THE PROLOGUE

   1. Statewide Demographics: A "Polyglot" of Cultures

      To understand the impact of politics on the Florida judiciary, one must first appreciate Florida's heterogeneous regions. Each region has its own distinct culture, which makes generalizations about the state problematic. Demographically, Florida's population is rapidly growing, with approximately 700 people joining the state's population each day. (17) Because Florida's population is always changing, Floridians have been characterized as "rootless" in that they lack many traditional political anchors (e.g., churches, labor unions) that typically influence voters' political affiliations. (18) Accordingly, Florida voters "drift from candidate to candidate with little lasting loyalty." (19) Historically, the state's politics were, like those of other Confederate states, "white, conservative, segregationist, and one-party Democratic." (20) That homogeneity, politically speaking, was premised on race, an issue that has declined in saliency but not disappeared. (21) Over the last forty years, the state's population has grown more diverse and its political culture more variegated.

      Florida is divided into three regions, each with a distinct culture and political tendency. The locus of political power has shifted from the northern part of the state (Tallahassee, the state capital), to the central (Orlando, Daytona Beach, and the Space Coast), southwest (Tampa-St. Petersburg and Clearwater), and southeast (Miami, Ft. Lauderdale, and Palm Beach) regions. While the...