TALLAHASSEE - If the Brothers Bush were to be asked which has the better job these days, George might say that Jeb does.
It's not just that Iraq hasn't turned out to be quite the romp that Big Brother expected. The president has got to be envying how easy it is for the governor to pack appeals courts with ideologically compatible appointees.
The president's brightest rising star, Miguel Estrada, has had to withdraw in the face of an unbreakable Democratic filibuster. The same tactic threatens at least four other controversial appellate nominations.
In Florida, however, Jeb Bush has now appointed three court of appeals judges who are conspicuous for hard-right leanings. There will undoubtedly be more.
The three are Charles Canady, the former congressman who was Bush's general counsel when he promoted him to the 2nd District Court of Appeal at Lakeland; Paul Hawkes, who was a political hatchetman in the House speaker's office when named to the 1st District Court of Appeal at Tallahassee; and, the latest, Frank Shepherd, to the 3rd District Court of Appeal at Miami. The Shepherd appointment apparently succeeded, where the others did not, in awakening court-watchers to what's at stake.
He is the managing attorney of the Pacific Legal Foundation's Atlantic Center in Coral Gables. The foundation is to "property rights" as the NRA is to firearms. He has argued against the right of citizens to intervene in environmental disputes, for the notion that modern environmental rules should not apply to owners of platted lots in the Florida Keys, for beachfront property owners and boaters against baby turtles and manatees, and for Bush's private school vouchers and so-called "tort reforms."
The governor returned the favors last year with a written endorsement encouraging donations to the foundation and has now endowed the foundation with a seat on one of the courts that are the last resort for the great majority of Florida appeals, perhaps putting Shepherd on a fast track to the next Supreme Court vacancy. Among the also-rans were three veteran Miami-Dade circuit judges, but the real issue is how Shepherd came to be a nominee in the first place.
David Guest, who has argued against Shepherd as an attorney for the Earthjustice Legal Defense Fund - a polar opposite of the foundation - said he thinks of Shepherd not as a lawyer but as "sort of a right-wing ideologue who's got a law degree."
Had his been a federal appointment, Shepherd would have had to explain to the Senate Judiciary Committee how he could isolate his votes as a judge from the strong positions he has advocated for the foundation. The usual rationale that attorneys are not their clients does not necessarily apply. Unlike a traditional full-service firm that welcomes any plausible paying client, the foundation is a selective advocacy organization that relies on contributors, such as Bill Clinton's deep-pocket nemesis Richard Mellon Scaife, to pay the bills.
Unlike a would-be federal judge, Shepherd did not have to explain or promise anything to a committee of independently elected legislators. He had merely to satisfy the nominating commission for the 3rd District which, like all of Florida's nominating commissions, has been converted into a patronage committee for the governor.
The commission did ask, to be sure, whether Shepherd would carry his ideology to the court. He said he would not.
In fact, he might have a moderately hard time doing so. Attorneys who represent positions he has opposed, such as the environmental, consumer or trial lawyer points of view, would be flirting with malpractice if they didn't ask him to excuse himself from their cases. This could go on for quite a while.
In a recent interview, I asked Shepherd to say under what circumstances he might step aside. I didn't expect him to answer, and he didn't. He'll take the motions as they come, he said.
From 1972, when Gov. Reubin Askew succeeded in establishing nominating commissions in the Constitution, every governor had accepted their independence.
The commissions were set up this way: The governor appointed three members. The Florida Bar named three. Those six chose three more. Neither the governor nor the Bar could count on controlling the commissions. Some questionable nominations occurred, but not many.
Two years ago, however, Bush easily got the Legislature to let him appoint all nine members of each commission. The Bar's opposition was eventually pacified with an amendment entitling it to propose four people for each commission. But as the governor can keep rejecting the Bar's choices until he gets whom he wants, that was no compromise at all.
It was an inglorious day for the Bar when it went meekly into that dark night.
Amidst all the initiative petitions, most of them ludicrous, that are circulating in Florida you would think that there ought to be at least one to protect the independence of the judiciary. Is that not worth as much as to someone as the comfort of pregnant pigs?
