Underlying many of the shrill arguments made in the aftermath of the 2000 presidential vote in Florida were questions regarding judicial independence. The concept of judicial independence is often expressed in absolutist terms, but the reality is more complex. Courts, regardless of their rhetoric, are political institutions, born of politics and subject to political whims.
Florida state courts are no exception. This Article connects the historic events of the 2000 presidential election to the larger question of how to balance what are often seen as incompatible variables: judicial independence and political accountability. (1)
The political and legal wrangling surrounding the 2000 presidential elections crystallized long-brewing public animosity towards the judiciary, particularly the Florida Supreme Court, perceived to be out-of-step politically with the rest of the state government. In this Article, we will discuss the concept of judicial independence, the political nature of courts, and efforts to insulate courts from the ordinary politics engulfing the popularly elected branches. We first review Florida's political history and changing political landscape. We then trace the development of the state's judicial selection processes and tie those processes to current legislation that the Florida legislature has considered and, in some cases, enacted in the wake of the 2000 Presidential election. Finally, we consider the likely consequences of efforts to diminish the insulation that the Florida courts enjoy from the politics of the day.
II. JUDICIAL INDEPENDENCE
A. Politics Defined and Judicial Politics Explored
The key to understanding questions of judicial independence is to appreciate the political nature of courts. When we use the word "politics," we do not employ its pejorative variant. Rather, the definition we attach to politics is derived from the understanding that courts influence the policy-making process. In particular, we adopt the conventional definition of politics in our field: the process by which authoritative decisions are made about the allocation of goods in society. (2) Under this definition, judges have discretion, grounded in their respective jurisdiction, as to what judgments to render and whose interests to protect. They can support certain policies and outcomes while opposing others. Courts throughout the United States do so on a daily basis without arousing much public interest or controversy. (3)
While courts are certainly political institutions, they are also legal institutions that differ from the other political branches. Courts operate within a field of bounded discretion due to pre-existing rules that govern their decision-making. These include procedural and evidentiary rules that limit how and when courts can act and constrain a court's options when issuing a decision. Those rules inure to the legal system's benefit in that litigants and the public can generally anticipate how a court will react. This consistency gives the judiciary a greater legitimacy than that of the relatively unpredictable executive and legislative branches. Periodically, courts and their decisions captivate the public's attention. When their decisions are viewed to contradict the interests of the public, their behavior is often discussed at length. (4) In those highlighted situations, the policy-making power of the judiciary becomes apparent to even casual observers who may vigorously oppose the policy interests annunciated in the court's decision. This dynamic certainly was apparent during and following the presidential election in 2000. After that election, serious questions of judicial independence still linger.
B. Judicial Independence Defined
Judicial independence in America often resembles the proverbial elephant being examined by four blind men. Each reports a description of the beast based on touching the elephant in only one area. …