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Amendment 5 and the Battle to Remake, And Subdue, the Florida Supreme Court

| October 1, 2012

Night falls on the Florida Supreme Court. (Stephenie Smith)

Night falls on the Florida Supreme Court. (Stephenie Smith)

Even as three Florida Supreme Court justices fight to hold onto their seats in merit elections scheduled for November, a ballot proposal that would change how future appointees are named to the court is also headed to voters.

The most contentious part of Amendment 5 would subject all Supreme Court nominations to confirmation by the Florida Senate. The measure would also lower the bar for the Legislature to overturn court rules and would give lawmakers access to the records of judicial investigations, something that could be used in the impeachment process.

Currently, justices are selected by the governor from a list of candidates sent to him by the Supreme Court Judicial Nomination Commission and take their seats on the court. They later go before voters in “merit retention” elections, where they face no opponent but must get the support of a majority of voters.

For supporters of the amendment, the measure would strengthen the checks and balances that are a bedrock of the state’s democratic system.

“Senate confirmation would act as a check on the gubernatorial appointment power, and would ensure that appointees to Florida’s highest court are publicly vetted,” wrote Speaker Dean Cannon, the driving force behind the amendment, in an editorial in the Orlando Sentinel.

Cannon, R-Winter Park, pushed a more dramatic recasting of the Supreme Court in 2011, a few months after justices set aside a series of legislatively-backed constitutional amendments that they found were flawed. Cannon’s proposal would have split the court into criminal and civil braches, but the Senate balked.

Instead, lawmakers went forward with the confirmation process. Supporters point to a familiar precedent.

“That’s a process that has existed at the federal level since the founding of our republic,” said Edie Ousley, a spokeswoman for the Florida Chamber of Commerce, which backs the proposal.

Those behind the amendment argue that the other changes would simply reinforce the Legislature’s powers.

Currently, lawmakers need a two-thirds majority to override judicial rules approved by the Supreme Court, but supporters argue the court can simply reinstate them, and that the rules often make sweeping changes that resemble laws. Amendment 5 would bar the court from readopting a rule if it gets twice rejected by a simple majority of lawmakers.


And supporters say giving legislators access to the Judicial Qualifications Commission’s investigative records, which are sealed until a judge is formally charged with breaking judicial rules or ethics, would help the Legislature carry out its responsibility to impeach judges for improper behavior if the JQC doesn’t act.

But opponents of the changes — already rattled by the merit retention battles faced by Justices R. Fred Lewis, Barbara Pariente and Peggy Quince this fall — see the amendment as another effort to undermine the independence of the court.

“This is just a power grab by the Legislature trying to interfere in the business of the courts,” said former Republican Sen. Alex Villalobos, an opponent.

Villalobos said the Senate only does minimal vetting of the nominees it currently considers for other offices, and that the confirmation process could delay an appointee taking a seat on the court — though supporters of the amendment point out that it requires the Senate to consider the nomination within 90 days.

“Under Florida’s system, you simply don’t need to add politics to judicial selection,” said Talbot “Sandy” D’Alemberte, a former Democratic lawmaker and former president of the American Bar Association.

He said the additional hurdles could also make it more difficult to fill court vacancies.

“The process is now going to discourage good candidates from submitting their names,” D’Alemberte said.

The amendment would need 60 percent of the vote in the November elections to take effect.

–Brandon Larrabee, News Service of Florida

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