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Courts may find little haven from partisan storms


© St. Petersburg Times, published December 14, 2000

The big loser in this year's presidential election is not Vice President Al Gore.

And it surely isn't George W. Bush.

The real loser, as noted by U.S. Supreme Court Justice John Paul Stevens in his dissenting opinion, is the "nation's confidence in the judge as an impartial guardian of the rule of law."

Stevens was undoubtedly talking about the nation's highest court and the narrow 5-4 decision that awarded the presidency to Bush. But he could have been talking about Florida's own Supreme Court as well.

Partisans on both sides of the aisle looked to the state's and nation's highest courts for decisions that were devoid of partisanship. What they got in return were party line votes that indicate the courts are as divided and partisan as the nation.

Both courts had strong dissenters who accused the majority of running the train off the track. And in both instances the bad blood is likely to last for years to come.

Sen. Patrick Leahy of Vermont, ranking Democrat on the Judiciary Committee, said, "The majority has dealt the court a serious blow by taking actions many Americans will consider to be political rather than judicial."

In a public appearance, one of former President George Bush's appointees to the court discounted the role of politics on the court.

"Don't try to apply the rules of the political world to this institution," Supreme Court Justice Clarence Thomas said in a televised question-and-answer session with high school students. "I have yet to hear any discussion in nine years of partisan politics among members of the court.

"We have no axes to grind, we just protect this," Thomas told the students, holding up a copy of the Constitution.

During Thomas' TV appearance, Chief Justice William Rehnquist dropped by the Supreme Court's public information office to thank the staff for its work during the election case. Told by reporters that Thomas had just said politics did not enter into the court's overall decisionmaking, the chief justice responded, "Absolutely, absolutely."

Yet, in Florida, we are likely to see repeated attacks on the independence of the judiciary. We are already seeing a campaign to oust Justice Harry Lee Anstead. Judicial elections in the years to come are likely to be marred by highly partisan and doctrinaire campaigns waged by various interest groups springing up like wildflowers.

Come spring we are likely to see dozens of bills designed to change the way we select judges and the way courts operate. Legislative leaders said Tuesday that it is far to early to predict what court-related issues will win approval when they convene in March, but it is clear the Republican majority in the House and Senate is not happy with Florida's highest court.

It cannot be an accident that a Florida court selected by governors who were Democrats and a U.S. Supreme Court where the majority was selected by Republicans have taken opposing views of an election contest between Republicans and Democrats.

If their roles had been reversed and the U.S. court had been dominated by Democratic appointees, would Al Gore be the winner?

Some wonder if the deep division among the Florida justices might signal a future of court rulings that are equally divided. Thankfully the elections lawsuits appear to be over, so perhaps a period of rest and the peace of the Christmas season will descend on the court for a time.

Last week Florida Supreme Court Chief Justice Charles T. Wells predicted that the majority of his own court was taking the nation into "an unprecedented constitutional crisis." And he correctly predicted that their decision would not withstand the scrutiny of a higher court.

Wells, a registered Democrat appointed by Gov. Lawton Chiles, was joined in his dissent by Justices Leander Shaw, a Democrat appointed by former Gov. Bob Graham, and Major Harding, a registered Independent appointed by Chiles. But the opinion signed by Wells is far harsher than the separate dissent signed by Harding and Shaw.

Wells said the majority opinion signed by Justices R. Fred Lewis, Barbara Pariente, Peggy Quince and Anstead "will do substantial damage to our country, our state and to this court as an institution."

The majority opinion in Florida so seriously lowered the threshold for getting courts involved in election controversies, Wells also predicted that Florida now risks having every election decided in a courtroom.

A sad prediction at a time when the nation's courts seem to have become as partisan as the politicians.

- Information from the Associated Press was used in this report.

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