So How Do We Get There?
Unfortunately, politicians often do everything they can to prevent the courts from becoming independent. At the risk of becoming tiresomely repetitious, the absolute first step is to cure the corruption of our government by taking it off the market. But once that is done, there are several safeguards that must be put in place. Martin Dyckman, a retired investigative reporter for the St. Petersburg Times (now the Tampa Bay Times) has written several books on what he, with reason, calls the golden age of Florida politics. It may be hard to believe, but Florida has had, in the past, some excellent governors: dedicated, intelligent, and effective public servants (and, yes, a fair assortment of sleezebags). One of the former is Reubin O'Donovan Askew, who served as governor from 1971 to 1979.
In Dyckman's view, one of Askew's major achievements was the reformation of Florida's courts. He wrote a book, A Most Disorderly Court, about the scandalous events that lead to that reform. His object, he wrote, was “to plead the case for preserving the three great reforms of the Florida Supreme Court's most turbulent decade.” Out of those reforms Dyckman derives a few basic principles:
First, judges should be appointed, not elected. The framers of our constitution never considered having judges elected. Politics and justice are incompatible.
Second, that being the case, the executives who make the appointments must not be free to select them for political reasons. This is more tricky, for obvious reasons. A good beginning is the establishment of a nonpartisan nominating commission to provide a list of candidates from which an executive can choose. For the Florida Supreme Court, Governor Askew established additional safeguards: he choose three of the nine justices, the Florida Bar appointed three more, and the first six then choose the remaining three.
While the courts must be independent, to the extent possible, from politics, they must also be accountable. Unchecked power will inevitably become arrogant. Florida has two ways to achieve this (other states have similar methods). One is merit-retention elections. Sitting judges, even if appointed, periodically stand for election. There is no opposition; the question is merely whether or not this judge will remain in office. Presumably only particularly scandalous behavior will result in a recall.
[Citizens United may have changed that. Super PACs, having almost unlimited funds, may target specific judges, precisely because they are independent and impartial. Most judges would have little ability to defend themselves.]
The other safeguard is the Judicial Qualifications Commission, a body established by the Florida constitution and charged with reviewing complaints against judges. It was created in 1967 as an alternative to impeachment by the legislature and is presently an effective check against judicial abuse, although it was not always so.
As Dyckman makes abundantly clear, none of the safeguards is foolproof. All institutions are susceptible to corruption. Ultimately they all depend on the bedrock of democracy: an informed and intelligent citizenry.