Martin DyckmanRick Scott needs to hear from Sandra Day O’Connor.
Not that he’d listen.
The retired justice, who must surely regret what has happened to the U.S. Supreme Court since she left, is devoting her time now to fighting for the independence of the judiciary.
She has become a prominent and oft-spoken critic of what she calls “persistent efforts in some states to politicize the bench and the role of our judges.”
Florida is one of the states where that’s happening.
Unfortunately, it’s Scott who is trying very hard to make it happen.
O’Connor, a keen critic of the peculiar American habit of electing state judges, released a plan this month that calls for appointing them all through a merit-based nominating system.
Once appointed, the judges would face voters in periodic retention elections, without opponents.
This is how Florida and about half the states already select at least some of their judges. Florida uses it for all vacancies on the appellate bench — the Supreme Court and five district courts of appeal — but for only mid-term vacancies among elected trial judges.
The O’Connor plan is no endorsement of Florida’s way of doing that.
“Multiple appointing authorities should select nominating commission members,” O’Connor advises. “This bolsters public confidence in the commission’s independence.”
The independence of Florida’s 26 judicial nominating commissions has been on the decline since 2001 and has vanished under Scott.
Under the system that Gov. Reubin Askew established in 1971, no one could count on controlling any of the nine-member commissions. The governor and the Florida Bar each appointed six members. Most –usually all — were lawyers. Those six would then select three public, non-lawyer members.
Before, governors were accustomed to putting their friends in vacant judgeships.
“So far as gubernatorial appointment of judges is concerned, the spoils system is dead and buried in Florida, and it’s our job to see that it stays that way,” Askew said.
It rose from the dead 30 years later. The Legislature gave governors the power to appoint all nine members of each nominating commission. Four must be from lists submitted by the Bar, but the governor can reject the lists time and again until he gets names that suit him.
Jeb Bush and Charlie Crist never sent any back. But Scott has now done it 19 times, setting the Bar to begging for more volunteers willing to risk having Scott kick them in the teeth.
The most important issue in the governor’s race this year is about who may appoint four new justices — a majority — to the Florida Supreme Court.
The ink was scarcely dry on O’Connor’s report when Scott last week turned down the latest two lists — for the Second District Court of Appeal and the 15th Judicial Circuit (Palm Beach).
That’s one of the many habits Scott refuses to explain — are there any that he does explain? — other than to say he wants nominating commissions and judges who share his philosophy.
Whatever that philosophy is, it evidently has little use for Democrats or for lawyers who specialize in suing big government, big business or medical defendants on behalf of common folk.
That can be gleaned from comparing the people he doesn’t want with some of those he has been appointing. Most of those he likes are frequent Republican campaign contributors, have rarely given to Democrats, and specialize in commercial law.
One of the rejected 15th circuit candidates might as well have had a target painted on his back. He’s a major contributor to the Florida Justice PAC, a political arm of the trial lawyers.
“The overall makeup of (a) court,” writes O’Connor “must reflect respect for the community it serves. Those responsible for selecting judges should be mindful of this.”
Needless to say, those responsible should reflect the community too. O’Connor even argues for a majority of non-lawyers on each nominating commission.
Under Scott, minority appointments to the nominating commissions have been dwindling.
O’Connor didn’t single out Florida in remarking on the importance of independent nominating commissions. But it’s likely that she had Florida in mind. Two prominent Floridians serve with her on the Institute’s advisory committee. They are former Florida Gov. Bob Graham and Talbot “Sandy” D’Alemberte, former president of Florida State University and of the American Bar Association.
The “O’Connor Judicial Selection Plan,” issued by the Denver-based Institute for the Advancement of the American Legal System, is a non-technical, non-legalese appeal in plain English for a justice system that’s above politics and fair to everyone.
This link will get you there: http://iaals.du.edu.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.
