Call for term limits pits judicial independence against accountability

By Taryn Phaneuf | Mar 8, 2017

TALLAHASSEE — A move to bring “good government and accountability,” by setting term limits on some judicial offices has Florida lawmakers squaring off in a debate over accountability versus independence of the state’s judicial branch.

TALLAHASSEE — A move to bring “good government and accountability,” by setting term limits on some judicial offices has Florida lawmakers squaring off in a debate over accountability versus independence of the state’s judicial branch.

On Feb. 21, the Judiciary Committee in the Florida House of Representatives voted to pass a joint resolution that would limit appellate-level and Supreme Court justices to two consecutive terms – or 12 years in office. One after another, opponents stressed their belief that judicial independence is fundamental to government and would be lost under the proposal. Still, the measure passed the committee, 11 votes to 8, and was sent to the House floor.

However, this is just one of many hurdles the bill must overcome. Because it calls for amending the Florida Constitution, it requires support by three-fifths of the House and Florida Senate. If it passes both houses, a referendum would be placed on the ballot in 2018, which would pass only if three-fifths of voters are in favor. A similar attempt to enact term limits last year failed to pass the Senate.

Checks & balances?

Currently, appellate and Supreme Court justices are appointed by the governor, who selects from a list of nominees chosen by a commission. They are up for retention every six years. Before on the Judiciary Committee last week, Rep. Jennifer Mae Sullivan, R–Eustis, who authored the bill called HJR 1, appeared before the House Judiciary Committee, casting doubt on the current system. She said since it was put in place in the 1970s, every justice has been retained – voters haven’t ousted a single one.

“An accountability system that doesn’t hold people accountable is not truly an accountability system,” Sullivan said in committee. “This joint resolution seeks to correct that and give the people of Florida another opportunity to implement the accountability they originally intended to place upon our judicial branch of government.”

Republican legislators’ attempt to place term limits on the judiciary fits a long-standing animosity between the two branches, dating, perhaps, all the way back to the 2000 ruling in Bush v. Gore, Kathryn DePalo, a political scientist at Florida International University, told the Florida Record. Recent rulings in death sentencing law and redistricting increased the tension.

“Republicans have really knocked a lot of rulings in courts, in general,” she said. “The Legislature wants to have an upperhand … to dilute the power of the court.”

Introducing the bill for debate in the judiciary committee, Sullivan defended the notion of judicial term limits as a necessary reform to check and balance power between the three branches of government.

House Speaker Richard Corcoran, R-Land O'Lakes – the man behind the initiative – echoed the sentiment in an Orlando Sentinel opinion piece on Jan. 17, writing, “Power, unchecked, turns into arrogance and corruption.” He went on to say the fault with an unchecked judicial branch has manifested in the form of activist judges who “rather than interpreting the law and applying it to the facts before them, they decide what they think the law should have been in the first place.”

“Acting like an unelected super-legislature, they issue rulings that extend beyond the facts of the case and produce sweeping changes to the public policy of our state on issues ranging from the death penalty to education to insurance,” he wrote. “Judges – like legislators and governors and presidents – should act only within their constitutional powers. Judicial activism – whether perpetrated by conservative judges or liberal judges – undermines the rule of law. It short-circuits democracy, and it erodes the separation of powers.”

If they succeed, DePalo believes power would shift to the governor, who would likely have more opportunities to appoint new justices.

“You’d really get to shape the judiciary that way, I think,” she said.

Opposing views

At the heart of Sullivan’s argument is that judges should be more accountable. DePalo said the current system doesn’t do much for accountability. Voters don’t usually know what they’re voting on when asked whether they would retain a justice, she said. In the meantime, there are other issues that take up more energy and attention.

“There’s only so many things you can pay attention to if you’re just an average, normal person,” she said. “Especially in a retention election ... how do you really judge somebody?”

On the other side is the argument for judicial independence. Rep. Bill Hager, R-Boca Raton, though he ultimately supported the bill in committee, drew attention to the importance of lifetime appointments on the federal level. He said the intent of the U.S. Constitution was the prevent the judicial branch from becoming “a manipulative toy” of the Legislature.

Opponents warned that term limits could threaten that independence. Jeff Kottkamp, former Lt. Governor of Florida, who appeared on behalf of the Florida Chapters American Board of Trial Advocates to oppose the bill, said independent judges made rulings important civil rights decisions precisely because they aren’t accountable to voters (or potential future employers) and, therefore, aren’t pressured to make popular decisions.

“There’s a reason our founders gave judges life tenure – so judges don’t react to the political winds of change. So they are not afraid to make unpopular decisions. We want our judges to be independent. We want them to have the independence to decide the Bill of Rights applies to everybody,” he said. “We want them to make decisions based on the law and that is all.”

DePalo sees the current system as a mix of both ideals. Appointing justices at the appellate level removes the “overt politics” of judicial campaigns that fill offices at the trial court level. In theory, retention brings some voter accountability. She said term limits would likely be effective in checking that independence because appointed justices who never would have worried about retention may become more concerned for their position – at least in their first term. She thinks term limits would get voters’ attention and bring special interest groups into the mix.

“I think the independence of the judiciary would certainly be at a disadvantage in that sense,” she said.

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