Tough tests of judicial fairness

The presidential election is putting a harsh glare on impartiality of those who wear the robes of justice.

When judges don their black robes, they are expected to leave preferences, biases, and politics aside and strive as best they can to follow the rule of law.

But are American judges really nonpartisan?

If ever there was a situation to test that question, it has arrived in Florida with the high-stakes litigation surrounding the 2000 presidential election.

At a time when judges across the nation are being assailed for "legislating from the bench" or for acting increasingly political in their attempts to win judicial elections, Florida judges suddenly find themselves in the center of an international spotlight.

And with good reason. Judicial rulings in the days ahead could literally write history by playing a crucial role in helping to determine the next president of the United States.

How these judges perform at this intersection of politics and law will set an example for the world of either fairness and courage or petty partisanship.

"State judges don't face issues this important that often. There is a tendency to think: 'I am going to be remembered for this decision, I'd better get it right,' " says Alex Acosta of the Ethics and Public Policy Center in Washington.

Two major decisions have been issued, so far.

A federal judge in Miami who is a life-long Democrat and appointee of President Clinton denied a request by lawyers for George W. Bush for an injunction blocking the ongoing manual recount of votes in heavily Democratic counties.

And a state judge in Tallahassee who was appointed by a former Democratic governor upheld the authority of the Florida secretary of state, a Republican, to set a Tuesday night deadline for submission and certification of county election results.

But the judge also ruled that the secretary of state could not arbitrarily reject any subsequent submission of vote tallies resulting from ongoing hand recounts.

From a purely partisan perspective, the federal judge's ruling was a major victory for Al Gore, while the state judge's ruling marked a victory for the Texas governor. Nonetheless, and perhaps most important, both rulings have been accepted by legal analysts as being within the realm of fairness.

That doesn't mean they won't be appealed. In fact, both are currently under appeal to higher courts.

So far, a hands-off approach

But analysts say these early decisions are important because they suggest judges are adopting a cautious, hands-off approach to what is essentially the continuation of an election by other means.

"The message coming out of the federal court and the court in Tallahassee is, I think, very clear that we [judges] are not going to get into this," says Richard Scher, a political science professor at the University of Florida.

"This is what the judges are saying, that the electoral process belongs to the citizens of the state."

He adds, "I wouldn't be surprised if we keep hearing this from the judges, 'We are not going to block anything or interpret anything, we are just going to let the process go forward.' "

Professor Scher says there may be one exception to that tendency. "If they see the process being corrupted, they might become involved."

Bush lawyers are appealing the injunction denial to a three-judge federal appeals court panel in Atlanta, a court that tends to be conservative in its outlook and includes many Republican appointees. Lawyers in the secretary of state case are seeking the review of Florida's Supreme Court, whose seven justices were all appointed by Democratic governors and who tend to adopt a liberal approach in their jurisprudence.

The difference between the more conservative appeals court in Atlanta and the much more liberal state Supreme Court in Tallahassee is one reason Bush lawyers chose to take their case to federal court rather than Florida state court, analysts say.

And it is one reason why lawyers for Vice President Gore may prefer to litigate in the state court system, knowing that eventually the issues will reach Florida's liberal high court.

Many legal analysts say the Gore lawyers enjoy an advantage in seeking to keep the case in state courts, because federal courts are generally reluctant to interfere in state elections.

Nonetheless, some analysts suggest the most critical legal issues should ultimately be decided by the US Supreme Court in Washington, because the outcome of the Florida lawsuits may affect the entire country.

Others disagree.

"The last thing the US Supreme Court wants is to be in a position where the justices might be perceived as installing the next president," says John Baker, a constitutional-law professor at Louisiana State University in Baton Rouge. "For better or for worse, it is Florida's call."

Sensitivity to public perceptions also provides an important check on judicial power, analysts say. And it has already played a significant role in the Palm Beach County lawsuit filed on behalf of some 19,000 voters who were apparently confused by the so-called butterfly ballot.

The Palm Beach shuffle

So far, five of the county's 30 circuit judges have bowed out of the case for various reasons. Three stepped aside because of connections with lawyers arguing the case. One dropped out because of family links to the Florida attorney general's office.

And one judge, a registered Republican, recused himself after being accused by a lawyer of making disparaging remarks in an elevator about Gore supporters who cast their ballots for Pat Buchanan by mistake. The judge denied the allegation, but stepped aside anyway.

The most recent judge assigned to the critical series of cases at the Palm Beach courthouse is Jorge Labarga, a former member of the Cuban-American Republican Club, who campaigned on behalf of current Florida Gov. Jeb Bush in a 1994 election.

But Judge Labarga says he dropped out of politics when he was appointed to the court by Democratic Gov. Lawton Chiles in 1996.

Keeping up appearances

Florida judicial rules suggest that judges should step aside to avoid even a mere appearance of partiality. And Judge Labarga may face challenges, but past political activity is not grounds for recusal. Instead, the critical test is how Labarga conducts himself as a judge.

"When a judge rules in a way that favors his own party, that can't help but raise questions in people's minds about the objectivity of the judge," says William Ross, a law professor at Samford University in Birmingham, Ala.

(c) Copyright 2000. The Christian Science Publishing Society

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