There is a profound reason why the Founders gave life tenure to federal judges, subject only to impeachment for bad behavior. As Alexander Hamilton explained it in The Federalist No. 78:
“In a monarchy, it is an excellent barrier to the despotism of the prince; in a Republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body…”
Judges subject to the whims of a president or the Congress to keep their jobs would be worthless. So would the Constitution.
The founding wisdom has been confirmed time and again, most famously when the Supreme Court ruled that Richard Nixon was not above the law, and most recently Thursday, when the Ninth U.S. Circuit Court of Appeal ruled that Donald Trump is not above it either.
Although the effect is only that Trump’s immigration decree remains on hold while the court fully considers his appeal of the District Judge’s order suspending it, the three-judge appellate panel made an enormously important point.
Trump’s lawyers had argued, as the court put it, that his “decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The regime had also claimed, the court said, that “it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.” (Emphasis supplied)
A president in office less than three weeks was asserting the powers of a dictator.
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the court said.
I hope they’re paying attention in Tallahassee, where some legislators seem to think they too are above the constitution and are trying to take down the state courts that sometimes disagree.
The current attack is led by House Speaker Richard Corcoran, R-Land O’Lakes. A constitutional amendment (HJR 1), sponsored by Rep. Jennifer Sullivan, R-Mount Dora, would prohibit Supreme Court justices and justices of the five district courts of appeal from qualifying in retention elections after serving more than 12 years in the same office.
Why term-limit only those judges? Circuit and county court judges have vastly more power over the lives and property of citizens. But it’s the appellate courts that rule on the laws that legislators enact and the decisions governors make.
Corcoran, whose ambition to be governor is no secret, has declared that his nine appointees to the new Constitution Revision Commission must be committed to neutering the judiciary.
This concerns conservatives no less than liberals. Both sides warned a House subcommittee Thursday that, as one speaker put it, the first-in-the nation term limit would “insure that the best and bright rarely, if ever, apply” for appellate court appointments.
The subcommittee approved the measure 8-7, with only Republicans voting for it. However, the two Republicans voting no portend the lack of a supermajority to pass it on the House floor.
Although there’s no precise Senate companion, term-limit legislation assigned to three committees there is in several ways worse. No one could be appointed to an appellate bench who is under 50 and it would restrict Supreme Court appointees to candidates who had been judges for at least one year.
That would have ruled out such widely-esteemed lawyers as Justice Raoul G. Cantero III (2002-2008) who was 41 when Gov. Jeb Bush appointed him in 2002 and, Justice Charles T. Wells (1994-2009). None of three significant justices in the 1950s, Steven C. O’Connell, B. Campbell Thornal, and E. Harris Drew, had previously been a judge. Nor had Attorney General Richard Ervin when Gov. Farris Bryant appointed him to the Supreme Court in 1964.
Conceptually, there is a form of term limit that would make sense: A single, nonrenewable term of 20 years, with the judge no longer having to face retention elections, and the judicial nominating commissions restored to the independence they had before Republican governors got total control over them. But what the legislators are proposing does nothing good.
As the subcommittee was told but apparently chose not to hear, there is already significant turnover in the judiciary, where judges must retire upon or soon after becoming 70. The Judicial Qualifications Commission has not been idle in getting bad ones kicked off the bench. (I’ll write more about that in a subsequent column.)
The Legislature’s attacks on the judiciary may not succeed, but the greater danger is that Constitution Revision commission, which can send amendments directly to the 2018 ballot. With the House speaker and Senate president each appointing nine members, Governor Rick Scott, another court-hater, naming 15 including the chairman; and the attorney general, Pam Bondi, as an automatic member, it will be the first of the three commissions since 1978 to be dominated by one party’s appointees and, likely, hostile to the courts at the outset. The three members whom Chief Justice Jorge Labarga named next week will have the fight of their lives to protect the courts from becoming subverted by the governor and legislature.
Labarga’s three are well suited for their mission.
Hank Coxe of Jacksonville is a former Florida Bar president and has served on the Judicial Qualifications Commission. The CRC will need to listen to him on that subject.
Robert Martinez, of Miami, is highly regarded as the former U.S. attorney there. “In addition to being a good person and excellent lawyer, with thoughtful and humane values, Bob is one of the most courtly and well-mannered people I know,” a former assistant told me.
Arthenia Joyner, a Tampa lawyer who served in both houses of the Legislature, can tell the CRC firsthand what happens when the courts and law don’t respect people’s rights. As a student in the 1950s, she took part in lunch counter sit-ins at Tallahassee and was jailed for trying to desegregate movie theaters there.
Scott, Corcoran and Senate President Joe Negron have yet to make their CRC appointments. Let them follow Labarga’s examples of integrity, experience and wisdom. One can always hope.
Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.