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Democracy–Will the balance of power survive?


It was a Democrat who made “court packing” a scheme, a political move. And, it was done by an American president I confess to admiring for a great many reasons; his plan to pack the US Supreme Court with only justices who would see things his way, is not one of those areas of admiration for me.

It was 1937 and the country was in the economic free fall of a deep depression. President Roosevelt had proposed a great many new laws as a part of his “New Deal” legislation. In fairness, the idea of the New Deal bills was to turn the financial picture around and get Americans back to work. Some of those laws had passed muster through legal review and many had not. President Roosevelt was frustrated by, as he saw it, a Supreme Court filled with obstructionists. His solution was to devise a scheme to replace justices who were retiring with “his” men and he had drafted a bill to allow the president (Roosevelt) the power to appoint an additional justice for every justice who retired (a 2 for 1 appointment deal). Fortunately for our country, the bill did not pass.

Today, we have a similar effort afoot. If our form of government is limited to only the legislative and the executive branches, then there is a danger that any law passed by the legislature is sure to be passed by the chief executive; whenever the two offices are held by the same political party. It is a loss of checks and balances that has kept our form of government intact for well over two centuries.

There are a number of ways to limit a three branch system of government with checks and balances on each branch (executive, legislative and judicial) to only two with little checks or balances. Florida may be on its way to having only two branches of its government.

One of the ways to control the judicial branch of the government is through funding. Although the court system in Florida is supposed to be independent, it receives its funding from the legislature and the executive branches. The court system is incapable of operating if its funding is limited or restricted. A number of Florida legislators have made it known that if the judiciary will not “cooperate” it is the legislature who “holds the purse strings”.

Another way to control the judiciary is “court packing”; make sure you can put as many of “your people” on the court as possible and keep them there. That can only be done by eliminating the current justices through retirement or defeats in merit retention votes and getting new ones appointed. A similar outcome can be achieved by increasing the number of justices that can occupy the Supreme Court and allowing the legislative and executive branches to fill the newly created justice spots.

Currently, there is discussion in the hallowed halls of government in Tallahassee, to do a number of things to the judicial branch. Limit the court system’s funding and create a second half to the current Supreme Court. Cutting funding could bring an already over burdened court system to a near halt. Foreclosure filings and the shenanigans perpetrated by mortgage companies in those foreclosure cases have created a huge back log for judges and clerks. Based on February 2011 numbers, Florida is currently second in the nation for foreclosure filings. Bring the court system to a halt and we risk no cases reaching justice and the potential that criminal defendants may be released based upon a lack of speedy trial.

The theory behind adding a second half to the Florida Supreme Court explains that the court is not processing cases fast enough and, at least in part, that is resulting in Florida’s inability to put people on death row to death fast enough. The reality, however, is probably more related to the political goal put forth by my favorite president – “court packing”. The constitutional amendment that is likely to be proposed by the Florida legislature would create a criminal and a civil side to the Supreme Court. Sound logical? It does and that is certainly what its backers will be hoping voters will think. This approach interestingly evades the real questions of whether cases are really moving too slowly through the Supreme Court in particular and whether “specializing” in criminal cases will allow more convicts to be put to death on a faster pace.

In 2010, the Florida Supreme Court issued 241 opinions; approximately one per work day. That is in addition to cases in which they heard argument, but issued no opinion; reviews of death penalty cases; reviews of constitutionality of laws; and certain orders of governmental agencies. In addition, the Supreme Court oversees the running and management of all the circuit courts and appellate courts in Florida.

The Florida Legislature also wants to take away from the courts the drafting and approval of rules and procedures used by the courts in processing cases. In each year, the Supreme Court reviews rules and rule revisions that have been prepared by lawyers volunteering their time through the Florida Bar. The legislature would prefer that legislators take the time, each year, to argue, debate and hammer out the rules for the judiciary because the legislators in their ultimate wisdom see that process as more economical. They would then pass whatever rules this organization of lawyers and non-lawyers might dream up and then send it to the Governor (maybe a lawyer and maybe not) to approve, disapprove or ignore their recommendations. Maybe the legislature would have to start all over again if the Governor vetoes their rules. I wonder whether the efficiency of the legislature could produce rules in a year? Is this the best use of legislators’ time? Would they be better off spending their time reducing taxes and cutting already anorexic education budgets?

The conclusion is inescapable. Things have not changed a great deal since the 1930’s, when President Roosevelt made his attempt at taking over the US Supreme Court. Politicians are driven by power. Certainly many politicians began by wanting to “do good”, but power always gets in the way. When “your” particular brand of power is in control, you can become drunk and want to remove those nasty little constitutional stumbling blocks you see as in your way.

The last line of defense in Florida at this point is an educated voter who is unwilling to accept slogans, easy answers or the testimony of someone’s mother for arriving at a good, well thought decision. So, don’t take my word for it, read, consider, and act accordingly.

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Posted By: Clinton Cimring