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Tarnishing the courts

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© St. Petersburg Times, published December 15, 2000

TALLAHASSEE -- One voice, and one voice only, was conspicuously mute amid the deafening cacophony over Florida's presidential vote. It is that of the legal establishment, represented by the Florida Bar, which defaulted pitifully on its obligation to uphold the integrity and independence of Florida's judiciary.

The issue is not whether judges are right or wrong on any given day but whether they can do their sworn duty to decide the cases brought to them without fear of political retribution. That fear surfaced, regrettably if understandably, in Chief Justice Charles Wells' dissent to the Florida Supreme Court's 4-3 decision to renew the counting of disputed ballots.

"I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state and to this court as an institution," he wrote. (Emphasis supplied.)

Was Wells referring merely to its reputation among legal scholars? Or, more likely, to the various schemes that Florida legislators have attempted over the past several years to pack the court, diminish its powers to protect civil rights and usurp its authority over the regulation of lawyers and the budget of the Bar?

The Democratic side, in Tallahassee if not in Washington, was appropriately restrained and respectful in its reaction to its share of "disappointing" decisions, but some Republicans responded to their few losses here as if they had never been taught that the first duty of a lawyer is to respect the law.

House Speaker Tom Feeney, for one, said after the court's unanimous vote to extend the certification deadline that it had shown "a tremendous lack of respect for the Legislature" and that it "continues to supplant its personal preferences over the statutory law of Florida." Former Secretary of State James R. Baker III, who presumably waits to advise George Bush on U.S. Supreme Court nominations, said of the Florida court's second ruling, "It is a sad day for Florida, it is a sad day for the nation and it is sad for our democracy."

It is a sad day, indeed, when such irresponsible rhetoric elicits nothing but pusillanimous pussyfooting from the Florida Bar. Is the problem that so many silk-stocking law firms have sublimated their courage to their lobbying portfolios? Or is the problem simply the inertia common to large institutions?

Whichever, the Bar's passivity has invited massive assaults on the independence of the judiciary. One was announced Tuesday by a right-wing, well-financed group that asserts judges should be as "representative" -- e.g., political -- as the governor, Legislature and Republican Cabinet majority. This is fundamentally opposite to the traditional American rule of law. Justice Harry Lee Anstead will be their first target when he comes up for retention in 2002, but he won't be the last.

Until the national media came to town, hardly anyone cared to inquire into the voting registrations of Florida judges and justices. For nearly 30 years, our judicial elections have been nonpartisan. Former Gov. Reubin Askew, who was responsible for the establishment of Florida's judicial nominating commissions, has said that "In eight years, I did not ask or seek to know and avoided knowing the party of those persons who were on the lists."

"As we have tarnished the electoral system, we are now tarnishing the courts," state Sen. Don Sullivan, R-Seminole, warned Monday. He was speaking for the wrong cause -- the proposal that the Legislature should name Florida's electors itself -- but on that point he was right. It is not the presidential contest that tarnishes the courts, however, but irresponsible criticism from politicians whose respect for constitutional processes is only situational.

Faced with an election challenge unprecedented in significance and complexity, Florida's judiciary responded with a full sense of duty and courage that puts to shame the silence of the organized Bar.

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