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Right or wrong, it's their right

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By HOWARD TROXLER

© St. Petersburg Times, published January 3, 2001


Various citizens groups are angry at how the Florida Supreme Court ruled for the Democrats after the presidential election. They are opposing new terms for the justices who will be on the 2002 ballot.

If experience is a guide, a host of lawyers, judges, professors, commentators and other smart people will criticize these campaigns as improper assaults on Florida's courts.

But they will be wrong. The citizens have the absolute right to wage these campaigns. The proper remedy of other citizens who disagree will be to work harder to get the most votes.

Like it or not, once an appeals judge is appointed by the governor, his or her survival depends on the ballot box. The voters have sole power under the Florida Constitution to decide, yes or no, whether each judge gets a new six-year term. The ballot says simply:

Shall Justice (Blank) of the Florida Supreme Court be retained in office?

If a judge or justice loses one of these "retention" elections -- which has yet to happen in Florida -- then that judicial seat becomes vacant. The governor has to appoint a replacement.

Here is a key point: The Constitution does not place any conditions or rules on the ability of the citizens to vote "no."

It does not require the citizens to have a darned good reason.

It does not require them to have the prior approval of the Florida Bar.

It does not require them to know a secret password, or to ask pretty please with sugar on top.

In short, each citizen is free to vote "no" for any reason he or she pleases, or for no particular reason at all. This power is sacred. So is the power to organize, to campaign and to advocate a "no" vote.

This reality horrifies a lot of people, who worry that the independence of the judiciary is at stake. Their worst fear is that judges might be pressured into incorrect but popular rulings to get re-elected.

But that criticism is misdirected. It should be targeted against the Florida Constitution itself, which provides for an election. If there is a better method -- for example, lifetime appointment of judges, as in federal court -- then let someone bring it forward.

In the meantime, it is arrogant to berate the citizens for exercising a power that belongs to them.

"You have the right to organize a campaign for whatever reason you choose," says Mary McCarty, a Republican county commissioner in Palm Beach who is leading one such effort.

McCarty's main goal is to inform voters: "I intend this as more of an information campaign, so that when people go to the polls, they have some idea of who they're voting on."

Her fund-raising letter describes the court's ruling as "an outrageous, arrogant power-grab by a left-wing court which is stuck in the liberal '60s."

For the record, some of McCarty's facts are wrong. One of the justices targeted in her letter, Leander Shaw, will not even be on the ballot in 2002 and faces retirement the year after. The letter also criticizes the court for its ruling in a case that it hasn't even heard yet.

Nonetheless, McCarty has the perfect right to do what she is doing. I personally disagree with her fundamental assertion. The Florida Supreme Court's ruling in favor of Al Gore had a rational basis in the law. (If you're looking for a really wacky ruling, try Armstrong vs. Harris, decided in September, in which the court declared part of the Constitution itself to be unconstitutional.)

But if you believe that the Florida Supreme Court acted properly in the presidential case, or that it is unwise policy to fire judges just because we disagree with a ruling, then your duty will be to speak out during the campaign and to vote "yes" at the ballot box. You will not accomplish anything by sitting around sipping tea with pinky extended, tut-tutting at those awful peasants who dare presume to use their rights.

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