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When reform really isn't

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© St. Petersburg Times, published January 14, 2001

TALLAHASSEE -- Here's one New Year's resolution that I mean to keep: The word "reform" shall not be seen again in this space except within quotation marks, suitably modified -- as by "so-called," "purported" or "dubious," or in an unarguable historical context.

To call something a "reform" raises the question of whether it really is, which is why politicians and editorial writers love the word. So do headline writers; it fits easily.

"Senator calls for high court reforms," read the headline on a recent story describing proposals by Sen. Anna Cowin, R-Leesburg, to shake up the judiciary in several ways. One option would be to return to the old system of electing justices of the Supreme Court and the district courts of appeals, just like legislators and other politicians.

That would be to "court reform" as AIDS is to health.

However, it is not the only egregiously presumptuous recent "reform."

There was "tort reform," the business lobbies' euphemism for making it less costly to maim and kill their customers and other people. As the "public-be-damned bill," not even our Legislature would have passed it.

Cowin has plausible complaints about the secrecy in which judicial nominating commissions debate whom they will recommend for vacant judgeships. If those meetings were to be forced open, most people -- though not all -- might agree that this would truly be "reform." (Persuading reporters to actually cover those meetings would be the harder part.)

Similarly, pressure from Cowin and other court system critics could have another constructive result if it moved Florida to establish a judicial evaluation process modeled on existing programs in Colorado and at least three other states. Critics who complain that Florida voters have too uncritically re-elected all appellate judges up for merit retention conveniently fail to note that several justices had to overcome nasty campaigns against them. But there is a point to be made that voters need an objective source of performance data.

What makes some people nervous about Cowin's involvement is her association with religious conservatives who itch to purge the court for ideological reasons. Two years ago, she sponsored a proposal that was high on the Christian Coalition's wish list: It would have let the new governor, Jeb Bush, immediately replace up to two-thirds of the members of the commissions that nominate candidates for vacancies on the trial and appellate courts. Bush never endorsed the bill, however, and as Cowin recalls, "He pulled the plug on third reading on the last day."

"I'm not going to let that happen again," she said, implying that she wouldn't push court changes without his support. She may have a problem with the Senate's leadership. Judiciary Chairman Locke Burt, for one, noted last week that "change is going to happen anyway in 2002," with one justice facing mandatory retirement and two others preparing for retention challenges. Another will have to step down in 2004.

Cowin insists that all she wants is a "dialogue" and that she is open to alternatives other than election, such as term limits on justices or even appointment for life subject to Senate confirmation.

Florida's presidential election contest could not have not been worse timed for the Supreme Court's welfare and the long-term independence of the judiciary. Its decisions further energized Republicans who had been complaining that the court is insufficiently "responsive" -- Cowin's term -- to the Legislature's wishes on the death penalty and other matters.

Legislators make the problem, however, with their bad habit of passing unconstitutional laws (as, to speed up executions) or hopelessly confusing ones (the election code) and relying on the courts to clean up after them.

Cowin hadn't yet moved to Florida when a succession of Supreme Court scandals, resulting in three resignations, persuaded the Legislature and voters to stop electing appellate judges and move to merit retention. One resignation coincided with exposure of a justice's high-roller gambling junket to Las Vegas. Two justices were probed (and one had to quit) over a draft opinion that had been supplied secretly by one of the lawyers in a huge utility rate case. Another, who was eventually disbarred, had tried to fix a bribery case (in which he'd been bribed himself) and routinely connived to have the court accept appeals filed by a lawyer who had been his major fundraiser. They had all brought political ethics to the bench.

To her credit, Cowin listened with widening eyes as I briefly retold that and asked for clippings that I shall be happy to send.

All that happened before campaign financing became a domestic arms race, which is a compelling reason why any proposal to elect Supreme Court justices would give its sponsor a daunting lead in the crowded annual competition for the session's worst bill.

People who think they want to elect justices, says Tom Slade, the former Florida Republican Party chairman, should be warned off by Alabama's experience.

"The trial Bar absolutely owns Alabama," he said. "The only people who've got more money than the churches are the lawyers."

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