Talbot D'Alemberte and Bob Graham: We must ensure integrity in judicial-selection process
Bob Graham and Talbot D'Alemberte
Tallahassee Democrat
Dec 30, 2008
By the early 1970s, patronage politics had severely undermined confidence in Florida's judiciary. After he became governor in 1971, Reubin Askew issued an executive order to limit political influence on judge selections and establish merit as the basis on which Florida filled vacancies at every level of the court system.
Thirty-seven years later, current Gov. Charlie Crist has a unique opportunity to recommit us to the path of choosing judges fairly and based on merit.
Gov. Askew established nine member Judicial Nominating Commissions (JNCs) for the Florida Supreme Court, the five appellate districts, and each judicial circuit. When it came time to fill judicial vacancies, these JNCs would take applications, interview candidates, and submit a list of nominees for gubernatorial consideration. The governor would then select one of those nominees for service on the bench.
The reform was designed to bring discipline to the selection process and to provide a check on the governor's raw power of appointment. Askew's action was bold and historic — he so valued meritorious selection that he voluntarily surrendered his power to accomplish that purpose.
Recently, news reports and editorials about the JNCs have caused great public concern that the process, originally designed to secure the selection of the best-qualified judges regardless of their politics, has become partisan. These reports and editorials raise legal issues that must be addressed as soon as possible.
The legal controversy relates to questions about the power of Florida's governor to ask that a JNC, once it has submitted finalists, to reconsider and add names to the list. Crist recently asked both the Florida Supreme Court JNC and the 5th District Court of Appeal JNC to take that step. The former agreed and the latter refused. Both decisions have drawn criticism.
Crist, who soon must fill vacancies on the Florida Supreme Court and the 5th District Court of Appeals, has within his power the means to resolve both the legal and the political questions.
We make two suggestions.
First, to solve the issue of whether the governor can ask a JNC for additional names, he should ask the Florida Supreme Court for an advisory opinion.
Second, we suggest that the governor enter an executive order to restructure his appointment power and thereby diminish the public concern about partisan politics within Florida's judiciary. This step should be accompanied with a request that all JNC members resign, thus allowing a fresh start for the selection process.
Askew's 1971 executive order established a balanced approach to judicial selection. For each JNC, the governor would select three attorneys. The Florida Bar would select three others. These six members would then select three non-lawyer members from the general public.
Following his action, the Florida Legislature proposed a constitutional change that incorporated Askew's nominating process but did not include the balanced JNC membership. Instead, it allowed the Legislature to regulate JNC composition.
The JNC process worked well for more than three decades and our judiciary has become highly regarded throughout Florida and across the nation. For 30 years, both Democratic and Republican governors erased the taint of partisanship with their commitment to appointing the best judges regardless of party.
Unfortunately, changes made to the system earlier this decade threaten to undo the progress of the last 37 years. In 2001, the Legislature gave the governor authority to select every JNC member — a scenario that dangerously resembles the infamous patronage committees that existed prior to Askew's reforms.
Crist can restore a balanced JNC process simply by issuing an executive order setting up the rules for selection of JNC members. He could use the original order entered by Askew as a model.
Both of these proposed steps would permit quick resolution of the current controversy. If Crist seeks an advisory opinion from the Florida Supreme Court, the court could address the legal issues without the need for litigation that some have threatened. The advisory process would also permit anyone, even members of the affected JNCs, to submit their thoughts to the court.
The second suggestion also can be accomplished rapidly. A new executive order would demonstrate the governor's commitment to quality judicial selection and help to re-establish the positive culture that has defined the Florida judiciary since 1972.
When Askew reformed the judicial selection process in the 1970s, it cemented his legacy as a leader who valued progress and integrity over politics. In taking similar steps, Crist can confirm his own reputation as someone who looks past partisan politics when it comes to important matters affecting Florida's citizens.
About the Authors
Former Florida State University president and former American Bar Association president Sandy D'Alemberte wrote this piece with former Florida governor and U.S. Senator Bob Graham. Mr. D'Alemberte can be reached by e-mail at dalember@fsu.edu.