Florida: Separation of Powers Duel in the Sun

During the presidential election that will never end, the Florida Supreme Court was rebuffed twice by the U.S. Supreme Court for election rulings contrary to the U.S. Constitution. Among the violations was usurping the power of the Florida legislature, which sets the rules governing elections and, in fact, has the plenary power to name Florida's electors for President, should it so choose.

Now, "it's payback time," according to the President of the Florida Bar Association. Flying largely under media radar until recently, the Florida legislature is considering a number of proposals that would reduce the power of the Florida Supreme Court, as well as make it more difficult and expensive for current justices to keep their seats on the bench.

This is nasty business that did not start with Election 2000, will not soon end, and it's bare knuckle politics on both sides. The Florida Supreme Court has earned the reputation as one of the most "activist" courts in the country. The Florida legislature is controlled by Republicans, who now have the numbers in both houses to outlaw beaches if they want to. At least one of the Florida Supreme Court justices is out making speeches against some of the legislation while walking a legal tightrope that forbids "inappropriate political activity" by judges.

Under some of the legislation, the Florida Bar Association could lose its ability to recommend judicial appointments as well as mandating membership requirements for all Florida lawyers. That group and several trial lawyer groups are preparing to enter the fray -- Rolexes blazing and checkbooks open.

The details of all this are quite juicy and extend to all of Florida's judicial system. Most recently, a district judge actually ordered that a legislative hearing dealing with collective bargaining be stopped. That order was ignored, and the legislature has now hired Barry Richard of Election 2000 fame to defend against contempt of court charges.

Neither side in this unseemly war is exceptionally distinguished, and there is little hope that, whatever the outcome, better government will ensue. Nonpolitical judiciaries anywhere are largely an idealistic fantasy, and more and more legislative action everywhere is taken without regard to the U.S. and state constitutions. Florida is no exception.

While the Center for Individual Freedom generally frowns upon illegal activity, it may well be that a duel -- not unknown to the Founders and possessed of both honor and decisiveness -- would leave the public interest and the separation of powers in better shape. In addition, pool noodles at dawn might be less of an embarrassing spectacle than the one that is about to take place in Florida.

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