October 30, 2014

Courts

Unintended Consequences

Fewer lawyers are lining up to fill vacancies on judicial nominating committees.

Pat Dunnigan | 12/1/2004
Three years ago, conservative legislators who believed that Florida's court system was being overrun by "activist judges" pushed through a law designed to limit the Florida Bar's influence in filling vacancies on the bench.

The new law gave Gov. Jeb Bush the authority to name all nine members of the 20 circuit court and six appellate court judicial nominating commissions around the state, though he must fill four of the seats on each JNC from a list of names submitted by the Bar.

JNC members interview and nominate applicants for vacancies on the bench. In the case of the trial courts, the JNCs nominate candidates to fill vacancies that occur between elections. The governor picks new judges from the list of nominees sent up by the JNCs.

Before the law was changed, the governor chose three members of each nine-member commission, the Florida Bar named three others, and the six members together selected the remaining three.

Some in the court system viewed the changes with alarm. The old system had been in place since the administration of Gov. Reuben Askew, and skeptics saw the governor's increasing influence as a threat to the independence of the judiciary. There were fears that the commissions would be stacked with conservatives and applicants for judgeships would find themselves having to answer questions about their views on such things as abortion, school prayer and tort reform.

Those fears were revived last year when it was reported that some members of the Broward County JNC had asked applicants about their religious beliefs.

But at a recent gathering of managing partners from law firms around the state, Florida Bar President Kelly Overstreet Johnson described a consequence that no one predicted: Fewer lawyers are willing to serve on the commissions.

"We have a lot of difficulty getting lawyers to apply to serve on the JNCs now," Johnson told the group.

"They say 'my politics are wrong' or 'the names we send don't get picked.' That says there may be a problem," Johnson says.

Johnson told the group that there were four circuits in the state where fewer than three people applied for a vacancy on their circuit's JNC this year.

In fact, according to Vicki Brand, special assistant to the Bar's executive director, there were eight of 20 circuits where the Bar still did not have three names to send for JNC vacancies within days of a deadline. Newspaper advertisements were republished and a flurry of telephone calls and e-mails went out to Bar members within the circuits. Eventually, the Bar was able to send up enough names.

Brand says it has been a problem for the past three or four years.

Johnson says she can't say for sure that the new law is to blame. But she has her suspicions. She also worries that there are good lawyers who won't apply for judgeships because of the perception that the system is less than impartial.

"I just don't think the independence of the judicial nominating commissions is helped by these changes," she says.

Tags: Politics & Law, Around Florida, Government/Politics & Law

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