May 15, 2011 Letters
The Balance of Powers
“The separation of governmental power was considered essential in the very beginning of our [state] Government, and the importance of the preservation of the three departments, each separate from and independent of the other, becomes more important and more manifest with the passing years.”
Pepper v. Pepper, 66 So.2d 280, 284 (Fla. 1953).
Florida’s judiciary — the lynchpin of our democracy — is under attack. In the 2011 session, the Legislature considered several bills which would inject partisan politics into the judiciary and undermine the separation of powers.
The independence of the courts from political whims is essential for the maintenance of a functioning democracy. Unfortunately, certain proposals from the Legislature threaten to chip away at this independence, opening the courts to partisan influence. First, HJR 7111 would split the Supreme Court into two divisions, opening the door to court packing by the governor. Much like President Roosevelt attempted to do to the U.S. Supreme Court in 1937, court packing undermines the objectivity and independence of the high court by allowing a single individual to bend the court toward their personal political leanings.
The importance of maintaining an independent judiciary was recognized nearly 40 years ago when then Gov. Reubin Askew created the Judicial Nominating Commissions, made up entirely of nonpartisan officials from The Florida Bar. In 1992, partisan politics were again injected into the system when more than half of the commission was made to include officials appointed directly by the Executive Branch. This dangerous trend now continues as HB7101/SB2170 would allow the entire commission to be selected by the Executive Branch — essentially making these commissions an arm of the Executive. Similarly, HJR1097/SJR1664, would further politicize this nomination process by allowing the Senate to veto judicial appointments. Under such a system, the judiciary would be hand-selected by partisan politicians and we would risk downgrading our courts into a mere administrative division of the Executive and Legislative branches.
Several legislative proposals also aimed at upsetting the delicate system of checks and balances necessary to maintain equity of power between the three branches of government. First, HJR 7025 and HB 7027 each would allow the Legislature to write the courts’ own procedural rules, stripping the courts of the authority to govern their own internal workings and hampering the judiciary’s ability to right injustices. Currently, rules and amendments are proposed by judges and legal practitioners in the relevant fields which are then reviewed and implemented by the Supreme Court. pre-empting this power to the Legislature, these bills would not only upset the state’s separation of powers, but the new process would add bureaucracy and inefficiency, thus forestalling justice.
Finally, and possibly most unsettling, proposed HB1261/SB1504 would interfere with the Florida Supreme Court’s ability to review language describing potential constitutional amendments on ballots for the general public. Without Supreme Court supervision, mistakes in constitutional language could pass the Legislature as it hurries toward the conclusion of its 60-day session, or the Legislature could even disguise damaging constitutional changes with deceptive ballot language. Protecting Florida’s constitution through reasoned, expert opinion and review is one of the most important responsibilities vested with our judiciary. Weakening their oversight of this process endangers the state’s mechanism for justice and thus the rights of all citizens.
The Legislature’s proposals are deeply troubling. As attorneys, we must increase public awareness about these dangerous proposals and ensure they never become part of Florida’s Constitution — and that our judiciary may remain an impartial, independent, co-equal branch of government that protects liberty and justice for all.
Sen. Maria Sachs