What I Learned From My History Professor

Summer 2011

by Raoul Cantero

Raoul Cantero

Raoul Cantero

My last two columns were about what I had learned in my fiction writing class. One would think that by now I had gotten my college reminiscences out of the way. But this legislative session’s unprecedented proposals aimed at the judiciary demand some reflection on history.

In the 1930s, Congress enacted many laws designed to jump-start the economy and implement President Franklin D. Roosevelt’s New Deal, such as minimum wage laws. In a series of cases, however (many of them 5-4 decisions), the United States Supreme Court struck down many of these laws. Frustrated at the apparent destruction of his New Deal programs, President Roosevelt proposed to add one new member of the Court for each member over seventy, up to a maximum of six. A change in the number of justices would not have required a constitutional amendment, but Congress rejected that proposal. Eventually, Roosevelt had his way, however, as the older justices retired or died and he was able to appoint replacements (Justice Roberts’s “switch in time that saved nine” also had something to do with it).

Flash forward to 2010. Last year, the Florida Supreme Court struck from the ballot a legislatively proposed amendment to the Florida Constitution, which competed with a citizen’s initiative amendment, already on the ballot, which would require legislative districts to be contiguous and logically designed. The following session (2011), the House of Representatives passed a constitutional amendment that would have split the Florida Supreme Court into two divisions, civil and criminal, and would have added three members to the Court. The Senate, however, lead by several courageous and principled senators, correctly rejected the proposal as unnecessary. The judiciary dodged a bullet.

But the legislature is shooting with a machine gun. Although some proposals failed—such as another amendment that would have required appellate judges to be retained in office by a 60% vote rather than a majority—others passed. The legislature has proposed constitutional amendments that would allow it to repeal Florida rules of court by a simple majority vote, instead of the current two-thirds required. Another proposal would require Florida Senate approval of Supreme Court justices—after nomination by the JNC and appointment by the Governor. Both of these proposals passed in the legislature by the required 60% vote, and will now be on the ballot.

Not since I can remember has the judiciary been under such a virulent attack, and never before have the appellate courts been so much the focus. It is not often that proposed or enacted legislation directly affects appellate practitioners. But the time is here. Between now and the ballot amendments next year, appellate practitioners will be able to educate the public about these amendments and state their views. Personally, I believe we should leave well enough alone. Florida is an example of an appointments process that works. JNCs are designed to vet candidates so that whomever the Governor appoints will make a good judge. I have been a member of a JNC. Although the process is imperfect, I believe it is better than the alternatives. The proposed amendment will not improve the system; it will only inject more politics into it. But whatever your position, make your voice known.