Martin Dyckman: How to honor former Gov. Reubin Askew’s memory

Should the Florida Legislature want to pay a truly meaningful tribute to former Gov. Reubin O’D. Askew, who died Thursday, here’s how.

Not just with fulsome praise, but with concrete action to protect something he cared deeply about: the integrity of Florida’s courts.

First, the history.

Although it wasn’t precisely a “midnight” appointment, Gov. Claude R. Kirk Jr. had only three weeks left in his term when he named his friend and political ally David L. McCain to the Florida Supreme Court.

Justice Campbell Thornal’s death from cancer, the day after Askew defeated Kirk in the 1970 election, created the opportunity.

One of Florida’s best justices was succeeded by one of the worst.

The Florida Bar’s president, Burton Young, aware of McCain’s alcoholism and sordid ethics as a district court of appeals judge, vehemently protested Kirk’s intent to appoint him.

But Kirk wouldn’t be deterred.

Askew, a lawyer and state senator with a particular concern for the judiciary, was already thinking of abdicating the governor’s historic free hand in judicial appointments.

In his eighth month in office, Askew signed an executive order creating nominating councils — now known as commissions — to recommend candidates for vacant judgeships.

“It is my firm belief,” he said, “that only the most qualified, conscientious and dedicated persons available should be appointed to serve the public as judicial officers.”

His choice of a judge would have to be one of three people nominated for each vacancy.

He also wanted the nine-member councils to be beyond his — or anyone else’s — control.

The governor could appoint only three members. The Bar named three more members. Those six then selected three citizens who could not be lawyers.

The word to his staff was “hands off.” Askew didn’t even want to know who was applying for judicial vacancies.

Askew, a Democrat, made a point of seeking out Republicans and minorities to appoint to the councils.

“It was the most unselfish thing any governor ever did,” remarked a lawyer of my acquaintance — a Republican who didn’t necessarily agree with Askew on other policies.

The nominating system was incorporated into a constitutional amendment that established Florida’s present court system in 1972.

Sponsors neglected to guarantee the formula for appointing the commissions.

McCain, meanwhile, was living down to the Bar’s low expectations of him.

He resigned in April 1975 after a select House committee recommended his impeachment for attempted case-fixing and other unethical acts.

There were other scandals at the court as well, resulting in the resignation of another justice.

Politics was the root of them all.

Askew, the Legislature and the voters realized it was time to insulate the appellate courts from politics. A 1976 amendment provided for staffing the Supreme Court and district courts of appeal exclusively through appointment rather than election.

But in 2001, 30 years after Askew established the nominating commissions, an intensely partisan Legislature turned them into the functional equivalent of political patronage committees.

It empowered the governors to appoint all nine members of each commission. Four must be lawyers recommended by the Bar, but the governor can reject the lists until he gets names he likes.

Gov. Rick Scott has done that 15 times. Minority appointments to the commissions and to the courts are dwindling. The Bar is even having trouble recruiting enough lawyers to serve on the commissions.

Scott has made it plain that the commissioners, as well as the judges they recommend, must mirror his policies.

The Legislature could fix this, but it seems to be moving the wrong way.

A proposed constitutional amendment by state Sen. Tom Lee, R-Brandon, specifies a governor’s power to fill prospective vacancies on the Supreme Court and district courts of appeal — even if the governor’s term is ending along with that of a departing judge.

If Scott is re-elected this year, he’d be a term-limited lame duck in December 2018, but he could still replace three retiring Supreme Court justices.

That wouldn’t be so controversial if the commissions were still independent.

As Lee says, the constitution needs clarification.  In 1998, outgoing Gov. Lawton Chiles and incoming Gov. Jeb Bush avoided a court fight by agreeing jointly to Justice Peggy Quince’s appointment.

Whoever makes the appointments, an independent nominating commission should guide them.

That’s what Lee’s amendment ought to provide. When I spoke with him Thursday, he said he would be “happy to look at it.”

No finer tribute could be paid to Askew’s memory.

Martin Dyckman, a retired associate editor of the Tampa Bay Times, is the author of books on Askew and the Florida Supreme Court. He lives at Waynesville, North Carolina. Column courtesy of Context Florida.