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Rash judgment

Gov. Jeb Bush wants to allow creation of new judicial posts and then to appoint them. That is not what lawmakers had in mind.

By Times editorial
Published July 13, 2006

Gov. Jeb Bush is itching to appoint 55 new judges before he leaves office in January, but this is a fight that will only diminish his legacy. To do so, he would upset a legislative deal two years in the making and pull the rug from beneath voters and judicial candidates less than two months before the election.

Does Bush really need to push the Supreme Court to overturn these elections?

The petition was filed by his appointees on the 11th Circuit Judicial Nominating Commission, and the attorney says Bush's office is likely to file an amicus brief. The argument they are making parrots the constitutional objections Bush himself raised when he allowed the bill to become law on June 10. Though his office is trying to create some distance between the governor and the petition, this is clearly his fight. Does he really think voters are offended by the prospect of having to make their own decisions on the 55 new judges?

Bush is clinging to constitutional language that has been interpreted different ways in recent years. He says that the creation of a new judicial job is the same thing as a vacancy, which he is allowed to fill by appointment. Lawmakers clearly had another idea in mind. In creating 110 new judges over the past two legislative sessions, they decided to allow half to be appointed and half elected. Bush, of course, raised no objection to the 55 he appointed last year.

The Supreme Court is being drawn into this fight to declare the new law to be unconstitutional so that Bush can appoint the other 55. But on Wednesday the justices gave themselves at least a couple of weeks to decide, an indication they may not be eager to disenfranchise judicial candidates who are campaigning and voters who are being asked to assess.

"You definitely hope that the time, money and effort spent in a campaign are spent for a reason," Pasco County judge candidate Frances Werner-Watkins told a reporter. "A lot of people are putting out a lot of time and money for me, and that could be taken away in a heartbeat. That's frustrating."

Bush's 11th-hour legal strategy is frustrating as well. Lawmakers probably would have done themselves a favor by delaying the effective date of the law. But what is clear is that governors in the past have allowed some vacancies and new judgeships to be filled by elections and that the time to raise these objections would have been last year, when the deal was struck.

If Bush truly thought the law creating these new judgeships was unconstitutional, he could have vetoed it. Instead, he's trying to have it both ways. He wants to allow the creation of the new judicial posts and then to appoint them. A veto might have left the job to another governor.

The court should want no part in this snooker.

[Last modified July 13, 2006, 06:19:50]