Kenneth B. Bell, Florida's new Supreme Court justice, comes to the job under two clouds of his own making. One concerns the proper role of an appellate judge. The other is that he once allowed religious bigotry to advance his career.
As to the first: In his application, the circuit judge from Pensacola made too obvious a point of saying what Gov. Jeb Bush wanted to hear. Florida courts, Bell wrote, "must recognize their role as the 'weakest branch of government' and pay due deference to the legislative and executive branches." Announcing Bell's appointment, the governor said that the courts should not guard individual rights "at the expense of our collective right to self-government." Does Florida's governor actually believe that individual rights and self-government are inconsistent? Does Florida's new junior justice agree? If so, they think too little and care even less about the state and federal constitutions that both of them are sworn -- and will soon be sworn again -- to support, protect and defend.
As to the second: During Bell's successful 1990 campaign for the circuit bench, a supporter addressed letters to "brothers and sisters in Christ," urging them to favor Bell for his "Christian conservative world view" in preference to the "non-Christian liberal world view" of his Jewish opponent. Though Bell disclaimed prior knowledge of the letter, he did not repudiate it for the anti-Semitism it plainly expressed. To the contrary, Bell rationalized that the letter contained "nothing derisive or defaming" about his opponent or his opponent's religion. No political reward justifies an evasion like that, and for Bush to have overlooked this blemish on Bell's record makes it his problem, too.
Bell's definition of "deference" (and Bush's motives in selecting him) will be on the line when the court eventually rules on the school voucher case that has been making its way slowly up the line. The central issue has to do with whether vouchers to religious schools violate Florida's constitutional ban against the use of any public revenue, "directly or indirectly in aid of . . . any sectarian institution."
Reference to the judiciary as the "weakest" branch of government comes from The Federalist 78, but hardly in the timid context that Bell's selective use of the quotation implies. Alexander Hamilton's purpose in writing it was to promote the independence of the judiciary, not its subservience. Without influence over either "the sword or the purse," Hamilton reasoned, the courts need other means of protection. That chosen by the framers of the federal Constitution (as in most state constitutions of the day) was to guarantee judges their jobs for life, subject only to impeachment for high crimes and misdemeanors.
Hamilton observed also that the public had less to fear from the courts than from the other two branches. Constitutional rights, he asserted, "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."
All manner of constitutional rights are at stake whenever a new judge is selected, not just the abortion rights famously upheld by Leander Shaw, the retiring justice whom Bell is succeeding.
No governors or legislators like to have their pet bills overruled, but that risk comes with the Constitution. Bush is hardly the first governor to have found it an occasionally uncomfortable fit, but he is the first in more than three decades to demand more power at the expense of judicial independence. It was unwise, and is looking more and more regrettable, for the Legislature to allow him to appoint all the members of the judicial nominating commissions.
A certain worrisome trend is becoming clear. Earlier, the commission for the 1st District Court of Appeal sent up a nominee who is best known as a political operative for the Florida House leadership, and Bush chose him over three sitting judges with much better credentials. Now he has chosen a Supreme Court nominee who conspicuously promises "deference," and who, at a moral juncture chose to accept a bigoted expression of support from an element of the religious right.
The nominating commissions still deliberate in secret, by the way. That's wrong, too.
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