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House Speaker Richard Corcoran has chafed at the liberal leanings of the Florida Supreme Court.
Jax Daily Record Friday, Apr. 14, 2017 2 months ago

Are term limits the way to fix a liberal Supreme Court?

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There must be some kind of ghost-lawyer who has it out for Florida’s Supreme Court justices. Twice in this decade, when a lawyer moved into the office of the Florida Speaker of the House, this ghost-lawyer seems to come to life and invade the minds and bodies of two Florida House speakers — both of them lawyers.

It must be that. It must be a ghost-lawyer who is angry with Florida’s Supreme Court and appellate courts. Because otherwise it’s too difficult to understand how two smart guys, two intelligent lawyers, two smart politicians … how once they became speakers of the Florida House they would invest so much time, money and intellectual and political capital in the battles they waged and are waging against the Florida Supreme Court justices and the state’s appellate court judges.

We are referring, of course, to House Speaker Richard Corcoran and his efforts to place a constitutional amendment question on the state ballot to impose term limits on Supreme Court justices and appellate court judges.

And six years before Corcoran, after becoming speaker in November 2010, Dean Cannon tried mightily in the 2011 legislative session to split the state Supreme Court into two divisions, criminal and civil, and make it tougher for the justices and appellate court judges to be retained in their six-year retention elections. He wanted the judges to have to win 60 percent of voter approval, not just a majority, to be retained.

In between Cannon and Corcoran’s speakerships, Florida’s two speakers were not lawyers — Will Weatherford and Steve Crisafulli. And if you remember — although memories of speakers’ terms often fade quickly — neither Weatherford nor Crisafulli showed even an inkling of trying to mess with the courts. The ghost left them alone.

Or maybe they just knew it wasn’t worth the effort to lob grenades at the courts and better to give priority to other issues.

OK, we know it’s not an anti-Supreme Court ghost-lawyer in the office closet. The conventional explanation for Cannon and Corcoran targeting the courts is politics. We do remember Florida’s Supreme Court rankled Cannon when it blocked from the ballot three Republican Legislature-supported constitutional amendments from the ballot in 2010 — one regarding Obamacare; another on property taxes; and a third on redistricting.

Afterward, in Cannon’s first speech as speaker, he took aim with his political gun, referring to the justices as “unelected justices” and criticizing their three decisions. OK, so we know his motivation.

Corcoran was a freshman legislator when that happened, although he was already a Capitol insider, having served as Marco Rubio’s chief of staff when Rubio was speaker.

No doubt, Corcoran still has some residual powder burns from those three High Court decisions, being part of the hard-conservative, Republican lawmakers, as was Cannon at the time.

And Corcoran is among many Republicans who chafe over Florida’s liberal-leaning Supreme Court, thanks to the appointments of the late Gov. Lawton Chiles (Justices Lewis, Pariente and Quince) and former Gov. Charlie Crist (Chief Justice Labarga).

Libertarian-oriented conservatives, as Corcoran is, put Florida’s High Court in the category of legislating from the bench, rather than following the Antonin Scalia approach of originalism. Those who say the court is legislating cite such recent rulings as blocking waiting periods for abortions; rejecting the Legislature’s redistricting; and ruling against business and the Legislature on workers’ compensation.

So it makes some sense, then: When the High Court rejects so many of your initiatives, you get angry. And when you’re angry, you want to get even or win. Waiting for the justices to turn 70 for mandatory retirement doesn’t cut it.

As Corcoran puts it: “It boils down to this — we believe that no government job should be for life.”

Term limits are the answer, Corcoran contends.

How’s that working out?

What’s the saying: Sometimes you can’t see the forest for the trees. For instance, how are term limits working out in the Legislature?

But first, let’s do the math. In truth, Supreme Court justices and appellate court judges don’t hold their jobs for life.

Say you’re appointed to a circuit court judgeship when you’re 40, considered on the younger side of the spectrum.

Now say you serve on the circuit for a dozen years and then are selected to serve on the state’s appellate court. That’s age 52.

Then either you finish your career on the appellate court, or maybe receive an appointment to the Supreme Court, say at age 58.

Either way, you must retire from both benches at age 70.

That’s 18 years on the appellate and High Court.

Now consider the legislative branch, which has term limits.

You can serve four two-year terms in the House and two four-year terms in the Senate — 16 years. You can serve even longer if you want to take a two-year break and run for office again.

But altogether, when you think about it, 18 years on the High Court or appellate court is not a job for life. U.S. Supreme Court justices and federal appellate court justices have jobs for life.

That’s the quantitative argument.

Why we have term limits

Now let’s look into the forest: how term limits have worked on the Legislature.

Thanks to Winter Park businessman Phil Handy back in 1991 and 1992, and his “Eight Is Enough” grassroots campaign, Floridians overwhelmingly adopted legislative term limits. Handy was compelled by the entrenched Tallahassee closed club of lawmakers who held the golden keys to power and legislative initiatives.

The poster boys at the time were two Panhandle lawmakers — Sens. Dempsey Barron and W.D. Childers, and South Florida Sen. Gwen Margolis. They were like busts cemented in the Senate chambers.

Barron served 28 years in the Senate; Childers 30 years; and Margolis, 18 years in the House and Senate, with 11 years on the Miami-Dade Commission, and then six more years in the Senate.

They were emblematic of a system that protected their turf, protected each other and practiced what Handy called “government in the margins.” With their grips on the Legislature, it was difficult for newcomers to wriggle into the power system and, more important, enact bold reforms. The classic good-ol’-boy system.

Handy saw term limits as a way to flush out the dinosaurs and create a system that constantly would allow fresh, energetic lawmakers to bring new and bold ideas to Tallahassee.

In that regard it worked. Term limits retired the Old Guard. And for the past 25 years, every two years there is a new crop of freshmen lawmakers, either because of their beating incumbents in elections or because of term limits.

But the Law of Laws is this: Whenever one law is adopted to address a problem or grievance, there always are unintended consequences.

Unintended consequences

Turnover is tough on any organization. New people practically always create some type of disruption. Add to that, the fact Florida’s House and Senate change speaker and president every two years. The system is in a constant state of flux, which is contrary to what most organizations and people need to thrive at their best: predictability and consistency.

You have heard this criticism of Florida’s term limits, too: A loss of institutional memory. You know the importance of this in your own companies and businesses. Former Sen. Nancy Detert of Sarasota, who served in the House and Senate, told us after she resigned last year from the Senate that lawmakers, especially in the House, simply don’t know as much about the state’s issues as they did before term limits.

What you hear is true: They rely much more on lobbyists and permanent legislative staffers to educate them on the issues.

Something else has happened. Detert described today’s new legislators this way: “They’re getting younger. And more arrogant. I don’t see courage. I don’t see commitment. It’s not about principles. They see it as an entry-level job to use to climb to the next step. They’ve had no life experiences. They’re politicians.

“They don’t read the bills. Everything is a trade. It’s not the floor of the House; it’s like the floor of the stock exchange. Everything is about power, climbing and trading,” she says.

There is accountability

Here’s the point: If judicial term limits were to be made law, there would be negative unintended consequences. Count on it. And it is not difficult to discern what they would be. Just look at the Legislature:

• Loss of institutional memory. When you talk to lawyers whose livelihoods are in the courtrooms, they see how most judges become better, wiser judges with time and experience. That’s institutional memory. You would lose that — years of experience and wisdom, which we know is valuable, especially in the courts.

Likewise, with that loss of institutional memory, combined with more frequent turnover on the bench, consistency inevitably will diminish.

• Quality of those willing to serve will decline. If you’re 50 and offered an appellate position, would you take it — knowing that at age 62 you’d be forced off the bench? Who can re-start a practice or find a commensurate job at age 62?

Conversely, if you look at the forest for the trees — at the existing system, you can say it works. Those supporting judicial term limits would disagree with that; they contend Supreme Court justices and appellate court judges are unaccountable to the electorate.

One fact they cite is there never has been a Florida Supreme Court justice or appellate judge who wasn’t retained in his or her retention elections every six years. Actually, flip that. It says the selection and appointment process has worked; voters believe there are good, independent and wise justices and judges on the bench.

Or, another way to look at the retention of judges is from a market perspective. If there are bad judges, the market always corrects. Just look at what happened to former Circuit Judge Mark Hulsey III here in Jacksonville.

What’s more, there is, in fact, accountability in the judicial system: the Judicial Qualifications Commission, Florida’s independent body of judges, lawyers and lay people charged with investigating and ruling on alleged judicial misconduct.

If Supreme Court justices are legislating from the bench, which we’ll agree, it sometimes seems that way, term limits will never stop that. The best way to stop that is to the elect the right governor.

In his heart and mind, we want to believe, Speaker Corcoran knows this. He has invested much in this issue — in fact, it started out as House Bill No. 1, arguably Corcoran’s top priority. While the House gave the bill its required three-fifths approval to put it on the ballot, the Senate version is languishing in committees.

That’s where it should stay. Term limits are not for the courts.

mwalsh@jaxdailyrecord.com

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