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Nancy Smith

Check With the Supremes: Judiciary Doesn't Have to be Politically Independent

October 6, 2012 - 6:00pm

As it happens, this judicial independence business is all baloney. It plain doesn't exist.

Don't take it from me -- take it from the Supreme Court of the United States.

Have a look at the precedent-setting, 2002 case known as Republican Party of Minnesota v. White, in which the highest court in the land ruled that there is no such thing as execesses in judicial politics.Judges can wear their political hearts on their sleeves however they wish.

In RPOM v. White, the Supremes struck down a state of Minnesota rule that prohibited candidates in judicial elections from taking stands on disputed legal or political issues.Justice Antonin Scalia, writing for the majority, said judicial candidates have the same rights to free speech as any other candidates.

He said "the majority determined that impartiality was not a compelling governmental interest ..." It is impossible, according to Scalia, to find a qualified judicial candidate who has not announced her or his views on legal issues -- or, as he said specifically, "who does not have preconceptions about the law."

Judicial independence is largely a myth, according to an Oct. 21, 2005, University of Chicago Law School Faculty blog called "Are Judges Political?" The piece cites considerable research. Judges' politics, apparently, rely heavily on the politics of whoever appointed them.

In Florida, members of the judiciary who are part of merit retention are also part of an election. Every six years, justices and some judges in office through merit retention must face an election -- an up-or-down vote. That makes them candidates -- officially. By definition. It matters not that they don't run against another candidate.

Here is what RPOM v White resolved:

That judicial candidates can handout doughnuts and gasoline coupons during their campaign; they can buy drinks for voters, speak at political fundraising rallies, participate loud and clear in "obstructive demonstrations" -- and presumably do as Florida Supreme Court Justices Barbara Pariente, R. Fred Lewis and Peggy Quince did on Friday -- surround themselves with cushions of liberal advisers, arm themselves with a group cache of more than $1 million and speak to the voters -- or was it the media? -- in a bogus forum from the bepomped halls of the state university law school.

By all means, read at least a summary of the RPOM v. White ruling. It ultimately stretched beyond Minnesota and has since been applied in other states where judicial activism is a part of the landscape. One of the best known cases is that of Thomas J. Spargo. He wasa state trial judge in Albany, N.Y. Spargo openly "demonstrated against the recount process outside the offices" of the Miami-Dade County Board of Elections in the aftermath of the 2000 presidential election ''with the aim of disrupting the recount process."

In 2003 the New York Commission on Judicial Ethics wanted Spargo disciplined for misconduct. But because of the RPOM v. White ruling in Washington,Judge David N. Hurd of the United States District Court in Uticawas forced to drop the case.

Monroe H. Freedman, a law professor at Hofstra University, said this:"The idea that if we make-believe judges weren't appointed by certain presidents or governors or elected in certain ways, no one will have a political bone in their body, is not correct. It isn't so, and there is no reason not to say so.

Instead of expecting judges to be inhumanly disinterested in case after case, wouldn't it be better if we simply required that when they have perceived or actual conflicts of interest, that they recuse themselves?

How many cases did these three Florida justices recuse themselves from in six years?

The justices in the Florida Supreme Court now are about as close to politics as anybody in the legislative branch of state government. It is frustrating to listen to their bluster. Of course they are political. Of course they make decisions -- both conscious and unconscious ones -- based on political favoritism.

We have an election upon us. Are you happy with these justices for six more years? It's a personal decision. But you folks who don't like the leftward lean of the justices' decisions have every right to vote against retention in November. Just as the justices will have every right to continue activist rulings.

Reach Nancy Smith at nsmith@sunshinestatenews.com or at (850) 727-0859.

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