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Sunshine State News

Should Florida Change the Way Judges Are Appointed?
April 18, 2013 - 6:00pm

The Florida judiciary has incited its fair share of controversy over the last several years, despite the fact that the judicial appointment process is mysterious to most Floridians.

A measure currently making it way through the House, HB 7033, would provide that the five members of each court's JNC appointed directly by the governor serve at his pleasure, whereas under current law they can only be removed, before their term expires, for cause -- i.e., in the case of crime or some serious ethical lapse.

The bill seems to have stalled in that chamber's Judiciary Committee; it does not have a Senate companion. Nevertheless, let's look ...

Popular confusion is or is perceived by many to be so rife that last year the Florida Bar launched an educational program, titled The Vote's in Your Court, ostensibly aimed at providing objective information about the judicial appointment and retention process, but accused by many conservatives of being a not-so-veiled campaign front for three controversial state Supreme Court justices who were up for retention in November.

What we have now is better than a purely elective process, Judge William Palmer of Florida's 5th District Court of Appeal tells Sunshine State News. It does take some of the politics out of it.

Palmer is chairman of the Florida Bar's Judicial Nominating Procedures Committee, which assists the governor in matters relating to the judicial nominating commissions (JNC) process.

JNCs are Florida's 26 bodies one each for Florida's 20 circuit courts, five district courts of appeal, and the Florida Supreme Court which are charged with giving the governor the names of three to six candidates whenever a judicial seat becomes vacant; the governor may select one of these nominees to occupy the vacant seat, or can reject the entire list and demand new submissions.

(Trial court judges are elected by voters in their district, except when a vacancy occurs midterm, in which event they are appointed through the JNC process.)

Each JNC has nine members: five are appointed directly by the governor, and two of them must be active members of the Florida Bar. The remaining four are chosen from a list of attorneys submitted by the Bar's board of governors.

The current process for appointing JNC members has been in place since 2001, when then-Gov. Jeb Bush signed into law the first major reforms since the 1968 revision of the Florida Constitution did away with popular elections of all judges, including Supreme Court justices.

I think that the prior method of selecting members of the JNC was preferable to the way that it's done now, Palmer opined, referring to the pre-1968 system, where three members were appointed by the governor, three by the Bar, and these six elected the remaining three, who had to be nonlawyers. I think having various groups have some input into the appointment makes more sense than the current system, where the governor appoints each of the members.

The 2001 changes brought some interesting results in their wake: under the 1968 system, every JNC had at least three non-attorney members, but could have had as many as six. Today, there is no such quota: a JNC can have as many as three nonlawyers or as few as none.

I'm generally in favor of getting as broad a spectrum of views as possible; I think there are perspectives that somebody can bring to the process as nonlawyers, Palmer explains. The main clientele of the courts are nonlawyers: the parties to the litigation [i.e., the plaintiffs and defendants] that come before the court.

But others believe that who sits on the JNC is less important than who has a hand in their selection.

I think it's important that all members of a judicial nominating commission have a direct nexus to a duly elected government official, attorney William Large, president of the Florida Justice Reform Institute and Jeb Bush's former deputy chief of staff, told SSN. Members of the JNC should be placed there by an elected official.

Large would not comment on whether the current system, under which four of the JNC appointees are filtered and limited by the whim of the Florida Bar, lived up to that criteria, but he did offer high praise for how Florida contributes to the nomination of its federal judges, U.S. attorneys, and U.S. marshalls.

I have nothing but high praise for the current manner in which federal judges are selected from the [three] federal judicial nominating commissions in Florida, because in Florida every member of the judicial nominating commission is directly appointed by a duly elected government official, either Senator [Bill] Nelson or Senator [Marco] Rubio, he explained. I think that's a system that works well.

Large refers to a longstanding informal arrangement between Florida's U.S. senators, and between them and the president of the United States. Although it is the president's sole constitutional prerogative to appoint these federal officials, in practice he will select nominees whose appointment is not objected to by a state's two senators, because there are informal maneuvers a senator can perform to block appointees he finds unacceptable: the U.S. Senate Judiciary Committee will usually not move nominees forward to the full Senate floor for a vote if a senator from that candidate's home state objects.

Between themselves, Florida's two senators have an informal agreement to receive recommendations from a special federal Florida JNC, whose members are appointed directly by the senators. (Large himself sits on this JNC.)

No attorney contacted for this piece would go on the record to criticize Florida's judicial selection process, just as none would go on the record several months ago to publicly criticize the retention campaign of sitting Supreme Court Justices Barbara Pariente, Peggy Quince, and R. Fred Lewis.

Over the last few years, Florida's Republican state legislators have tried,unsuccessfully to reform the judicial selection process; critics have charged them with wanting to stack the courts with Scott-appointees, while Republicans insist they're just trying to make the process moredemocratic.

In November, Floridians voted down a constitutional amendment that would have brought state Supreme Court appointments more in line with the federal process: nominees would have been appointed by the governor and confirmed by the Florida Senate.

Reach Eric Giunta at [email protected] or at (954) 235-9116.