Tuesday, March 8, 2011

HJR 1097: An Assault on Judicial Independence

I don't often speak out on individual bills, but House Joint Resolution 1097 is so horrible I just can't keep quiet. 
You can read the complete text of the bill here, but essentially what it would do is change how judges are appointed, removing a well-run process which uses Judicial Nominating Commissions ("JNCs"), and instead placing the power to choose judges solely in the hands of the Governor, subject to confirmation by the Senate.
I was planning to write a critique of this bill when I found the following commentary on a friend's Facebook page. John Hamilton is a litigation partner at the Orlando office of Foley & Lardner, where I had a summer clerkship in the Summer of 2002. I found John to be an extremely thoughtful and intelligent attorney. He and I do not see eye-to-eye on a number of political issues, but I admire his ethics and commitment to our justice system. His thoughts on HJR 1097 are spot on, and I am reprinting them here with his permission:
[HJR 1097 is a] profound, outrageous attack by the Florida legislature on the independence of the Florida judicial system. It’s shameful, embarrassing, disgusting, and appalling. No legislator who actually cares even remotely about our system of justice could even consider voting for this bill...
This bill proposes [an] amendment to the Florida Constitution—one that would change the method by which Florida appellate judges are chosen. When the great treatise is eventually written on the History of Bad Ideas, an entire volume will be devoted to this one.

Currently, appellate judges (the judges on Florida’s five District Courts of Appeal and the justices on the Supreme Court of Florida) are selected through a constitutionally-mandated process that uses bodies known as Judicial Nominating Commissions (or JNCs). The JNCs—one for each appellate court—consist of attorneys and laypersons who are essentially appointed to the commissions by the governor. When a vacancy appears in an appellate court, an applicant for that seat submits an application for appointment to the court. The JNC then considers all of the applications, interviews the applicants, and deliberates. It then submits a list of at least three names, but no more than six, to the governor, who must then select the new judge from that list.

When this system was instituted in the 1970s, it replaced a system in which the governor alone selected the appellate judges. The purpose of the JNC system was to fix a judicial system that was broken—a system that had become a laughingstock because it was far-too-often tainted by appellate judges who were corrupt, incompetent, or mere political cronies of whoever happened to be governor. Often, judges fell into more than one of those categories. The JNCs were thus created “to screen applicants for judicial appointments within their respective jurisdictions and to nominate the three best qualified persons to the Governor for his appointment. The commissions were to be an arm of the executive appointive power to supplant, at least in part, the Governor's so-called ‘patronage committee’ composed of political supporters, to insure that politics would not be the only criteria in the selection of judges, and to increase generally the efficiency of the judicial appointive process.” In re Advisory Opinion to Governor, 276 So. 2d 25, 29 (Fla. 1973) (emphasis omitted).

In other words, “[t]he purpose of the judicial nominating commission is to take the judiciary out of the field of political patronage and provide a method of checking the qualifications of persons seeking the office of judge.” Id. at 30. “One of the principal purposes behind the provision for a nominating commission in the appointive process was . . . to place the restraint upon the ‘pork barrel’ procedure of purely political appointments without an overriding consideration of qualification and ability. It was sometimes facetiously said in former years that the best qualification to become a judge was to be a friend of the Governor! The purpose of such nominating commission, then, was to eliminate that kind of selection which some people referred to as ‘picking a judge merely because he was a friend or political supporter of the Governor’ thereby providing this desirable restraint upon such appointment and assuring a ‘merit selection’ of judicial officers.” Pleus v. Crist, 14 So. 3d 941, 944 (Fla. 2009) (quoting Spector v. Glisson, 305 So. 2d 777, 783 (Fla. 1974) (emphasis omitted)). The JNCs have, and were always intended to have, “constitutional independence.” Advisory Opinion, 276 So. 2d at 30.

This idiotic bill would return Florida to its failed past by eliminating JNCs for appellate judicial positions. If approved as an amendment to the state constitution, it would provide that appellate judges would merely be chosen by the governor, subject only to the approval of the state senate. The inevitable result of this would be a judicial system that is worse, weaker, less effective, and less honorable—one conducive to graft, corruption, cronyism, political patronage, and incompetence. No legitimate interest is served by such a change—none at all.

If anyone has a sufficient amount of shamelessness to try to defend this abomination, he or she will likely put forth an inapt, intellectually dishonest comparison to the method of selecting federal judges under Article III of the United States Constitution (under which judges are chosen by the President with the advice and consent of the Senate). Once again, don’t be fooled. The state of Florida and the United States are not interchangeable, and what is brilliant on a national level is ridiculously unsuitable for the state level. That isn’t a mere guess; we already KNOW that from past experience.

Now no one needs to say or think that my views on this subject should be taken with a grain of salt. I freely concede that my objectivity could reasonably be questioned by those who don’t know me well, given that I have recently been selected twice by the JNC for the Fifth District Court of Appeal as one of the six nominees to fill vacancies on that court. And yes, the second occasion was the debacle when Governor Crist unconstitutionally refused to make the appointment from the JNC’s list, until the Supreme Court of Florida was ultimately required to compel him to do so through a mandamus action.

But those who know me, even superficially, will realize that my own JNC experiences do not influence my opinion on this issue in the slightest. I revere the law. I regard the judicial system as a co-equal branch of government, just as our Founding Fathers intended. I prize the genius of the separation of powers and checks and balances that are so indispensable to our system. And I know that attacks upon the independence of the judiciary are attacks upon a cornerstone of our liberty...
John is absolutely right. 

The current JNC system requires a group of citizens - a group that includes both attorneys and non-attorneys - to review a candidate's qualifications, personally interview them, and provide a list of nominees to the Governor. I won't be so naive as to suggest that politics plays no part in the JNC's recommendations or in the Governor's eventual selection, but this process sharply diminishes the ability of anyone to politically corrupt judicial appointments.

I am a supporter of Governor Rick Scott and helped on his campaign, and I have faith that he would be able to make prudent judicial appointments on his own. However, there is no guarantee that I will like any future Governor. Removing the JNC vests way too much power in the Governor's office and creates too strong of a temptation for graft and corruption. Remember, we write laws for the office as an institution, not for the person who is currently occupying it. If you wouldn't have wanted Charlie Crist or Alex Sink to have this power, then you shouldn't want Rick Scott to have it either.

Additionally, the vetting of judicial candidates, if done properly, is a time-consuming process, and allowing the JNCs to continue their excellent work is a better idea than adding to the Governor's already extensive list of responsibilities. This is, plain and simple, a "if it ain't broke, don't fix it" situation.

Please contact your Representative and encourage them to oppose HJR 1097. Visit www.myfloridahouse.gov and click on the "Find Your Representative" link near the top left to get the contact information for your Representative.


  1. There is a growing sentiment among voters, especially conservatives, and especially those of the Tea Party persuasion, that the judiciary is out of touch, elitist and unaccountable. It is a part of the general distrust of government that many voters have. This is why a measure like this might pass. This is a legislature led by lawmakers who are pretty upset with the Supreme Court, so we can expect a few measures like this coming out of this session. Hold no tight pwople. This could be some ride.

  2. Thank you for posting this. People need to keep speaking out, Democrats and Republicans, lawyers and non-lawyers alike.


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