from The Florida Bar News
Maybe Florida Supreme Court justices should deliberate in the Sunshine, like legislators do.
Maybe, like the U.S. Senate, the Florida Senate should confirm judicial candidates.
Maybe more everyday citizens should serve on the judicial nominating commissions.
Maybe the Legislature’s proposed constitutional amendments should bypass judicial review and go straight to the voters.
All of those ideas are worth debating, Florida Senate President Mike Haridopolos (R-Merritt Island) told reporters during a press availability discussion Dec. 8 that touched on a lot of issues, including the budget, school reform and state employee benefits.
A look at his thoughts about the courts was sparked when a reporter asked his opinion about a speech House Speaker Dean Cannon (R-Winter Park) gave criticizing the courts for “judicial activism” after three proposed ballot measures approved by the Legislature were barred by the justices as unconstitutional.
“It’s got to be frustrating when more than a supermajority of elected officials place something on the ballot that one judge can throw off,” said Haridopolos.
“I think (Cannon) has got a point. I’m open to some reforms in the courts. I hope it means more transparency and more Sunshine. For example, when (legislators) deliberate in committee, we do it in the Sunshine. Maybe Supreme Court judges should do their deliberations in the Sunshine. Maybe that’s a good idea. Why not have the judges deliberate in the Sunshine? I don’t think that’s a radical idea.”
Another idea Haridopolos floated was changing how judges are appointed.
“If you ask most Floridians out across the state and say, ‘Who confirms judges?’ they would probably say, ‘The Senate does, right? That’s how they do it in the U.S. Senate.’ Um, no, we don’t.
“Now, I wouldn’t want to take away the voters’ rights. They should have the final say on all judges. But maybe if we had Senate confirmation. Some people have complained about this JNC picking the people who the governor picks from. Maybe we expand the pool and make more everyday citizens into that pool. I don’t know. It’s a worthwhile discussion,” Haridopolos said.
Asked if the Legislature’s ideas for constitutional amendments should go straight to the ballot without judicial review, Haridopolos answered:
“I think it’s right to look at it. I respect the courts. It’s a check and balance. Clearly, they are going to have a say. I’m sure you’re going to see lawsuits as I predicted with (proposed amendments) 5 and 6. It’s already happened, as far as I know,” he said.
“Because the judges have the right to come in with judicial review. I mean, Marbury v. Madison is a pretty easy case. I teach it in my classroom,” said Haridopolos, a lecturer at the Bob Graham Center for Public Service at the University of Florida, of the decision that established judicial review.
“But I would hope when in doubt, when there’s a gray area, that they defer to the elected representatives, especially with a supermajority vote, as long as it does not specifically infringe upon a right. Guess what? Just because a person wears a robe doesn’t mean they’re nonpolitical.”
A reporter said: “You’ve said many times that the supermajority of you all voted for this, and the judges decided they didn’t like it. They didn’t decide they didn’t like it. They decided it didn’t meet the requirements, according to the (Florida) Constitution. I don’t understand why that makes you and Speaker Cannon so angry.”
“I didn’t realize I was so angry,” responded Haridopolos, who holds a master’s degree in history from the University of Arkansas.
“I’ll answer it this way: Look, anybody who spends any time taking a U.S. history course understands that some people interpret the Constitution one way and some another. It’s politics,” he said.
“Politics sometimes get played in the court, too, I’m sure. That’s fine. But when you amend the U.S. Constitution, it requires what? A two-thirds vote of both houses of Congress, and then it goes to three-quarters of the state legislatures. And if they, a supermajority of U.S. Congress, say they want to change the Constitution, they can do so. We are saying much the same thing.
“Florida is a little bit lower standard: It’s three-fifths, instead of two-thirds. And in our case, instead of going to three-quarters of the state legislatures for approval, it goes to the voters by a 60 percent majority,” he said.
“We just have different fractions, but the principle is consistent with the U.S. Constitution: that elected officials can redefine what the Constitution means. That’s not radical. That’s not angry. It’s the Constitution.”
Haridopolos said he is open for review on the matter, telling reporters: “If you all have suggestions, and it sounds like you might, come testify. We’d love to hear from you.”
The Senate president did acknowledge “we should probably watch a little better and keep some of the language out” of proposed amendments.
“What was that headline of ‘fair districts’? A judge could have said, ‘You know what? That’s not my definition of fair.’ And he could have struck the ballot language down, as a judge, right? I mean, it’s all just politics. That’s what we’re playing here.”
When a reporter recapped that it sounded like Haridopolos does support the Legislature’s proposed amendments going straight to the ballot without judicial review, the Senate president answered: “It might be the way we go. Again, this is why Dean Cannon opened the discussion. Some people find this provocative. I thought it was thoughtful.
“What I love is when you have a thoughtful or provocative question, it stimulates debate and people start talking about it. I’m not opposed to that. To me, these are interesting debates we are having. And that’s a good thing.”