‘We can do whatever we want?’ Not so fast

The courts are the least powerful branch of government in America’s system of checks and balances, but they are the most important. Without an independent judiciary, there would be nothing to make arrogant governors, presidents and lawmakers respect the Constitution and the rights of the people. Now, the politicians are striking back — in Florida and across the nation — and it is no stretch to say that democracy hangs in the balance.

An example comes in the thrashing a federal judge gave Gov. Rick Scott and the Florida Cabinet this week over denying voting rights to former felons who have long since paid their debts to society.

“We can do whatever we want,” Scott had boasted to his three Cabinet colleagues in voter suppression.

The stunningly brazen quotation appears on page two of U.S. District Judge Mark Walker’s 43-page order overturning the Cabinet’s practice of stalling all but a tiny handful of people who would like their voting rights restored after having served felony sentences.

Some 1.5-million people are languishing in Florida’s civic Siberia. Scott and the Cabinet have restored voting rights to fewer than 3,000 in seven years. The average wait is 14 years and the outcomes appear to depend on Scott’s whims. A voter initiative that would make restoration automatic — except for murder and sexual felonies — has made the November ballot. To pass, 60 percent of voters must approve.

This week Walker issued a follow-up order to Scott and the Cabinet to replace Florida’s “fatally flawed” system by April 16. He implied no one should have to wait more than one four-year election period. He all but accused Scott and the Cabinet of rigging the system, as opponents charged, to suppress minority — and Democratic — voters.

“There are problems of potential abuse, especially when members of the board who are elected on a statewide basis and who may be running for re-election or another office, have a personal stake in shaping the electorate to their perceived benefit,” the judge said.

Florida voters should endorse Walker’s defense of democracy by voting for Amendment 4.

That it took a court to correct the abuse of power by Scott and the Cabinet underscores what Alexander Hamilton meant when he wrote that “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.”

But an independent judiciary is under concerted attack.

Legislators in at least 16 states have filed bills to undermine the judiciary, reports the Brennan Center for Justice. In Pennsylvania, some Republican legislators are attempting to impeach state Supreme Court justices who threw out their gerrymandering scheme.

In the Florida Legislature this year, lawmakers tried to magnify their power and reduce or eliminate the already-weakened influence of the Florida Bar in appointments to the state’s 26 judicial nominating commissions. The commissions are the gatekeepers for seats on the Supreme Court and the district courts of appeal, and appointments to mid-term vacancies in the trial courts.

Both bills would have allowed the House Speaker and Senate President to meddle in selecting nominating commissioners, which they can’t do now. One would have minimized the Florida Bar’s participation in those appointments. The other would have cut the Bar out of the process altogether.

These bills didn’t come to a floor vote before the session adjourned, but they’ll likely be back.

Meanwhile, a committee of the Constitution Revision Commission killed a proposal to restore the original balance of the nominating commissions, which would have insulated them from legislative tampering. The fatal votes were cast by people appointed by Gov. Rick Scott and House Speaker Richard Corcoran.

The nonpartisan Bar deserves a key role in the process, more than any politician. Nobody is as well situated as practicing lawyers to evaluate the education, experience, intelligence, integrity and fairness that define a good judge. Political affinity should have nothing to do with it. But today, it does.

When he established the nominating commissions in 1971, Gov. Reubin Askew, a practicing lawyer, intended them to be as immune as possible to politics. The governor appointed three members. The Bar’s Board of Governors named another three. Those six then selected three members from the public.

With strikingly few exceptions, their recommendations were excellent; the nominees’ qualifications were rarely in doubt. That he voluntarily surrendered the governor’s exclusive power to put friends on the bench was praised as “the most unselfish thing any governor ever did.”

But in 2001, the Legislature and Gov. Jeb Bush sabotaged the commissions with a law giving the governor the power to name all nine members and allowing Bar input as to only four. Though Bush respected its recommendations, Scott has rejected on 19 occasions the Bar’s lists of lawyers willing to serve on the commissions, insisting on applicants more to his liking. As a result, the commissions have become the equivalent of political patronage committees.

America’s courts have no defense against politicians who seek to stack the bench except the power of public opinion — an opinion that should have no patience this November with politicians who would corrupt the courts to sabotage our fundamental liberties. In Florida, that means having no use for politicians who don’t support making the nominating commissions independent again.

In November, voters should make clear they have no use for politicians who refuse to make the judicial nominating commissions independent again.