11/10/00 4:55 p.m.
Judge Not
Judge Kroll shouldn’t, and neither should any other jurist.

By Robert Alt, adjunct fellow at the John M. Ashbrook Center for Public Affairs

raditionally, courts are very cautious about weighing in on political questions. The reason is clear: They know well the risk that they will become a tool for political gamesmanship in scenarios where candidates who could not achieve victory at the ballot box attempt to do so by judicial decree. When a judge is too eager to enter the political fray, questions naturally arise as to whether he or she has a dog in the race. Enter Judge Kathleen Kroll, the Democratic West Palm Beach judge who entered an injunction freezing the certification of Palm County's votes pending a hearing Tuesday.

Kroll was appointed to the bench by Democratic Gov. Lawton Chiles. She is married to Jonathan Low, a Clinton appointee to the Department of Labor, who contributed $250 to Gore's campaign fund, and another $250 to Gore's "Legal and Accounting Compliance" fund. The legal-compliance fund is undoubtedly being used (until his planned $4 million new fund is complete) to fund Gore's 70 lawyers in Florida — a cadre reportedly preparing to launch challenges similar to those currently pending before Judge Kroll.

If these potential conflicts aren't disturbing enough, a sample of Kroll's judicial decisions should make her bent clearer than a butterfly ballot:

• According to the Palm Beach Post, Kroll "shut out" Republican and Independent voters in a Palm Beach County House race by prohibiting them to participate in a runoff pursuant to state open-primary law;

• Kroll struck down a state law which required doctors to inform pregnant women of the age of their fetuses and the alternatives to abortion;

• Kroll argued that the governor should have to pay for a convicted sexual predator's challenge to a state law requiring rehabilitation, even though the statute itself said that the state was not responsible for expert-witness fees;

• Kroll struck down a law aimed at keeping minors from nude dancing.

Judge Kroll provides a vivid illustration of why courts avoid political questions. Impartiality will always be an issue, especially where, as here, the judge hearing the case has a connection to the candidate and a strong judicial predilection. Judge Kroll should recuse herself from the case because of the appearance of impropriety arising from her husband's contributions to the very candidate who would benefit from the case.

But running to another judge is not necessarily the answer either. The ballots used were approved by the Democratic party, were published in the paper for voters' preview, and were consistent with state law. The voters made their judgment, which should be final.