Behind the scenes in Tallahassee, where you're not supposed to see or hear, the struggle over Florida's judiciary has turned rough. The Senate, in no hurry to take up the House's court-packing bill, got one of those offers it couldn't refuse: Until you do, nothing of yours will move at our end of the hall.

So an unusual thing happened last week. Senate committee assignments were reshuffled. The Judiciary Committee, which was to have heard the issue first, will now go last. The Committee on Governmental Oversight, which was to have heard it second in line, led off and approved the bill.

But it was far from what the House radicals want, which is to purge all 26 judicial nominating commissions and have Gov. Jeb Bush appoint all nine members of each one with no further participation by the Florida Bar. Though the Senate committee agreed to a clean slate, the Bar would continue to appoint three members of each panel and could reappoint those currently serving. As now, those three would meet with three chosen by the governor to select three more members from the public.

Now it's time for the Senate to get tough. Even the Senate's compromise is potentially hurtful to the commissions in terms of limiting their experience and institutional memory. It would also make it easier for a new governor to load the commissions with people prone to nominate judges from the short lists of the Christian Coalition, Associated Industries and other interest groups. That is the real issue; what the House version intends is nothing less than the total destruction of judicial independence.

What's happening in Florida is clearly part of the same national agenda under which President Bush has terminated the American Bar Association's consultative role in federal judicial appointments.

With an eye on the building storm, Judicature magazine last fall published a provocative warning co-authored by Bruce Fein, a conservative legal scholar, and Burt Neuborne, a liberal.

" . . . American judges," they said, "have almost never adopted untenable theories of interpretation to advance personal agendas. During recent congressional hearings on alleged "activist' jurists, harsh critics were unable to cite a single judicial decision over several decades out of the hundreds of thousands delivered annually that fell outside the bounds of general acceptance. . . . "

If judges lose the freedom to decide, they warned, "cherished constitutional limitations would largely vanish. . . . "

"Self-interested majorities are not likely to believe their actions unconstitutional. They are driven overwhelmingly by partisan, parochial, and short-term visions that could destroy ordered liberty both for the living and for those yet to be born. Think of Robespierre, Danton, and the Jacobins of the French Revolution and their oppressive popular tribunals. Remember also the Federalist Party in the United States Congress, which both applauded the First Amendment and soon undermined freedom of speech in the Sedition Act of 1798 to muzzle their Republican rivals."

Lacking the votes for something even more drastic, such as the direct election of Supreme Court justices, the present-day Jacobins in Tallahassee hope to tame the judiciary through the back door. They rage at length about how even the nominating commissions are "political," but in regard to the many hundreds of judges who have been seated through merit selection since the 1970s, they cannot cite more than three allegations of inappropriate conduct by a nominating commission.

Nothing is broken, but if the House prevails, everything will be.

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