News

Stacking the deck

Under Gov. Jeb Bush, the process for appointing judges has taken on a decidedly partisan tone.

A Times Editorial
Published May 1, 2005

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Law Day originated 47 years ago today as our nation's counterpoint to the Soviet Union's bellicose May Day demonstrations. Nothing more clearly distinguished the two sides of the Cold War than democracy's belief in individual freedom and justice under law.

But though the Soviet empire is history, there are still clear and present dangers to the independence of the judiciary by which the framers of the Constitution intended to safeguard all of our liberties.

It is not just in Washington where judicial independence is in peril.

In Florida three decades ago, Democrats and Republicans united behind historic constitutional reforms providing for a nonpartisan judiciary and for the appointment rather than election of all judges of the state Supreme Court and district courts of appeal. An essential component was Gov. Reubin Askew's noblest legacy, a system of 26 nonpartisan judicial nominating commissions designed to be beyond any governor's control.

To each commission, the governor appointed three members. The Florida Bar, a quasi-official agency, appointed three. Those six then selected three more members from the public. This system worked so well, with only isolated reports of partisan or Bar patronage, that no one challenged it until Jeb Bush became governor.

Under Bush, the nominating commissions have become the functional equivalent of Republican patronage committees. Nearly 80 percent of their members are registered Republicans, as best as can be determined from the state's voter database. That's more than twice the party's share of the electorate.

Bush had been in office less than a year when his assistant general counsel developed a plan to covertly recruit judicial applicants who would be "ideologically compatible" with the governor. That did not survive its exposure, but in 2001, Bush easily persuaded the Republican-led Legislature to let him appoint all nine members of each nominating commission.

To placate the Bar, which now regrets not fighting harder, lawmakers gave it the right to nominate four members of each nominating commission. But there's a catch: The Bar must send the governor three names for each position, and he can reject any list he doesn't like. Playing it safe, the Bar sent him a predominantly Republican list in 2002. Though its recommendations overall have been about 40 percent Democratic, Bush has heavily favored the Republican nominees. Unsurprisingly, there are more prosecutors than public defenders and more defense specialists than plaintiffs' trial lawyers. Lawyers whose credentials are too Democratic or too liberal are getting the message: Don't bother to apply.

Through his nominating commissions, Bush has increased the percentages of blacks, Hispanics and especially women who serve on circuit and county courts. For that he deserves credit. But there are reports of inappropriate personal and religious questions being asked by overly zealous members of at least two commissions.

And on three occasions, Bush has appointed district court of appeals judges known more for their arch-conservative political views than for the legal moderation and specialized experience upon which pre-Bush nominating commissions insisted. The two most recent serve on the 1st District Court of Appeal, the least diverse with a membership of 13 white men, one black man and one woman. Those circumstances are hardly to the governor's credit. It is the appeals courts, after all, where legal policy is made and where the governor's most controversial legislation will stand or fall.

It was regrettable that Askew's method of selecting nominating commissioners was left vulnerable to legislative change. Restoring it to the Constitution should be the highest priority of every candidate for governor or legislator who expects to earn the public's trust.

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We asked the governor's office, in writing, to explain the partisan tilt in commission memberships. The essence of its reply was a copy of a form letter concerning the qualities, including integrity and diversity, they should expect of judicial nominees. His press secretary added a note: "The governor doesn't look at political affiliations; he looks at qualifications when making judicial appointments." That afternoon, Bush appointed one of his staff members to a circuit judgeship.

[Last modified April 30, 2005, 23:58:09]

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