GOP designs bills to mold the courts
By TIM NICKENS
© St. Petersburg Times, published March 11, 2001
TALLAHASSEE -- Dressed in their long black robes, members of the Florida Supreme Court were greeted by applause from state legislators last week as they walked into the House chamber for Gov. Jeb Bush's State of the State address.
The justices' ears should have been burning.
Before they arrived, House Speaker Tom Feeney ripped into the courts.
The Republican alluded to decisions by Florida courts that have blocked restrictions on abortions, rejected accelerated death penalty appeals and stalled changes to civil courts approved by the GOP-controlled Legislature. He quoted James Madison, Thomas Jefferson and Abraham Lincoln.
"No one in this body believes that the judiciary should not be independent from coercion by the executive branch or the legislative branch over their decisions," Feeney concluded, "but if you believe in democracy, then you must defend the proposition that it is the elected Legislature, and not judiciary, that should legislate. This House should defend democratic traditions."
Once again, the courts are in the cross hairs of Republican legislators upset by rulings that have prevented some laws they passed from taking effect. Once again, Bush is staying quiet as efforts to change the way Supreme Court justices and state judges are selected work through legislative committees.
"I'm going to allow the process to work on that for a while," the governor said after avoiding the issue in his speech.
But there are differences this year that make it more likely some changes could be approved.
Republican legislators have not forgotten that the state Supreme Court twice allowed recounts to go forward after the presidential election. That kept alive Al Gore's effort to overtake George W. Bush until the U.S. Supreme Court stopped the recounts.
Unlike some U.S. Supreme Court justices, the Florida Supreme Court justices have not granted interviews or further explained their reasoning.
Two of the most outspoken critics of the state court in December were Feeney and Majority Leader Mike Fasano of New Port Richey. While former House Speaker John Thrasher's barbs toward the court were just as pointed last year, Feeney sounds more determined to pass legislation.
The efforts also are gaining broader outside support.
Outside the state Capitol, several independent efforts are under way to gather signatures to place constitutional amendments on the 2002 ballot that would either recall justices or change the way justices are appointed.
Inside the Capitol, the issue is no longer dominated by socially conservative groups such as the Christian Coalition. Now some business groups are jumping on the bandwagon.
Lobbyists representing the Florida Retail Federation, the Florida Chamber and TRUE, a business coalition, testified in favor of a bill that would give the governor complete control over judicial nominating commissions that screen and recommend applicants for judgeships.
"I'm feeling more confident, no question," said Rep. Fred Brummer, R-Apopka. "Anything stepping into the judicial arena has much greater interest than four or five months ago."
Brummer is sponsoring several proposals, including:
A constitutional amendment that would require approval of two-thirds of the voters rather than a simple majority to retain Supreme Court justices and judges on the district courts of appeal.
It also would eliminate judicial nominating commissions, enabling the governor to fill court vacancies with confirmation by the Senate.
A constitutional amendment that would change the role of the judicial nominating commissions so the governor would receive all names of eligible applicants.
The commissions now screen the candidates and submit lists of finalists to the governor.
The legislation supported by the business groups that would enable the governor to appoint all members of the nominating commissions.
Attorney General Bob Butterworth, a Democrat, predicted voters would reject the constitutional amendments.
"If it gets on the ballot, it's going to lose, but it is going to hurt them," Butterworth said of state lawmakers. "It's going to hurt their legacy. I don't think they want to tell their grandchildren, "I destroyed the court system.' "
The constitutional amendments may be long shots.
It takes approval by 60 percent of the members of both the House and Senate to put constitutional amendments before the voters. The House Committee on Judicial Oversight postponed voting on the proposed amendments last week, and the committee will discuss them this week.
In the Senate, there appears to be little appetite for a direct assault on the Supreme Court. The issue is not among Senate President John McKay's priorities, and it is not on Senate Judiciary Chairman Locke Burt's radar screen.
"If you're unhappy with the Supreme Court," the Ormond Beach Republican said, "just wait."
The seven justices of the Florida Supreme Court are appointed by the governor, receive annual salaries of $150,000, and go before the voters every six years for merit retention.
Six justices were appointed by Democratic governors, and a seventh was jointly appointed by Govs. Lawton Chiles and Bush. Justices Harry Lee Anstead and Charles T. Wells are up for merit retention in 2002. Justice Leander Shaw will retire in 2003.
But the overhaul of judicial nominating commissions that would give the governor far more power appears to have a better chance of becoming law. The bill is moving through the House, and McKay indicated Friday he might be more open to that idea.
Under current law, the governor appoints three members to each nominating commission and the Florida Bar appoints three. Those six appointees pick three more, for a total of nine on each commission.
The House Committee on Judicial Oversight approved Brummer's bill last week that gives the governor the authority to make all nine appointments, although five would have to be members of the Florida Bar.
Diane Carr, a lobbyist for the Florida Retail Federation, called the legislation "a very moderate, reasonable proposal."
But Florida Bar President Herman Russomanno said it would inject more politics into selecting judges and set the state back 30 years. The League of Women Voters and the Association of Criminal Defense Lawyers also criticized the proposal.
"To the victor goes the spoils when it comes to legislation, but not when it comes to the judiciary," said David Rothman, president of the Florida Association of Criminal Defense Lawyers.
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