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  • Independence panel explores the JNC process

    first_img Independence panel explores the JNC process Gary Blankenship Senior Editor The Judicial Independence Committee heard a range of sometimes contradictory testimony about the operation of Florida’s 26 judicial nominating commissions when it took comments during the Bar’s Annual Meeting.Panel members also discussed the committee’s broader charge of protecting the independence of the judiciary and the challenges it will face.“This issue will never go away; it comes up at different times in our history,” said committee Chair Jesse Diner. “There is always a tension among the three branches of government.”Most of the meeting was devoted to hearing from witnesses, mostly past members of JNCs, but also some lawyers and judges who had applied for judicial appointments. Those testifying generally agreed that there was no pervasive political pressure in the system either before or after the 2000 legislature changed the process for appointing JNC members.But they did agree that it was known that Gov. Jeb Bush’s office preferred JNCs to send at least six candidates for each vacancy, even if that meant some candidates were not the “best of the best.” The state constitution requires the JNCs submit between three and six names for each vacancy.Prior to 2000, the Bar appointed three JNC members; the governor chose three; and those six picked three nonlawyer members. In 2000, the legislature gave the governor all nine appointments, although four seats are picked from slates submitted by the Bar.Some committee members and witnesses said that change creates the perception, if not the reality, that political connections are important, if not paramount, in appointments.The first two speakers set the tone for the day. Eleventh Circuit Judge Scott Silverman said he had been through the JNC process both under the old and new systems. The only problem, he said, was when a commissioner during his first interview — under the old system — asked what he considered an inappropriate question.“I think JNC members are like a jury. When you pick a jury, you wonder how they are going to do their job. But when they go back and deliberate, they do their job,” Silverman said. “It’s like anything else. The vast majority of people in this system really care about this system.”Jacksonville attorney Buddy Schultz said he served on the Fourth Circuit JNC and covered the old and new methods. He said he liked the old procedure in which the Bar and gubernatorial appointees picked three public members, saying that added diversity.He also agreed most JNC members past and present are dedicated. But he added, “It was clear to me in the last year of my term that one of the members appointed by the governor’s office had an agenda.”That member asked what Schultz considered to be inappropriate questions of three candidates that appeared designed to attack their credibility and appropriateness for judicial office. Schultz said he later called all three candidates and apologized.Schultz said he also knew of an apparent attempt by the governor’s office to influence a JNC nomination for a favored candidate for a district court of appeal vacancy. He said although he was not involved with the First DCA JNC’s operations, he did get a call from the governor’s office about the candidate.“It became clear to me that his appointment was attempted to be orchestrated,” Schultz said. And after the candidate was not nominated by the JNC following some tough questioning, “It was clear to me there was also an orchestrated attempt to not only discredit the process, but the people involved in the process.”And so it went as the committee heard from several commentators, including:• Joseph “Scooter” Kinman, a former member and chair of the 13th JNC, whose service bridged the old and new JNC systems. He said the old system was susceptible to pressures from local sources, including a former chief judge, while the new system resulted in improper questions being asked.“What’s your religion? Do you go to church? What religious things are important to you? How do you feel about the death penalty?” Kinman recalled the questions. “Not, ‘would you follow the law, whatever the law is,’ but ‘what are your personal feelings on the death penalty?’”He also said one gubernatorial appointee continually mentioned the governor’s name, told other commissioners he had just had dinner with the governor, and sprinkled JNC discussions with claims of what the governor wanted.“I don’t know if this person was just name-dropping or the person really had such conversations with the governor, but the impression I had as the chair was that it was an attempt to exert influence that was not proper,” he said.Kinman also gave what became the catchphrase for the meeting, when he said, “As chair, it was my opinion that we were looking not for good qualified nominees, but that we were looking for the best of the best.”He also said that while the Bush administration was always pushing for six nominees for each vacancy, he found it rare that more than three or four were the “best of the best.”• Carol McGuire, former member and chair of the Second DCA JNC, said she was appointed by Gov. Bush right after the new system was instituted. During her term, she said the majority of that JNC probably went from being Democrats to Republicans, but she saw no change in the quality of its work.“I felt everyone did a good job on what our obligations are. . . to bring to the governor the most qualified candidates,” McGuire said. “They all had a belief in judicial independence and, number two, to send the best of the best.”She conceded, though, the JNC felt it had to send six names for each vacancy, which included more than just the “best of the best.”• Jacksonville attorney A. Wellington Barlow, who has both been interviewed in the JNC process and served on the Fourth Circuit JNC from 1991-95, said he saw problems with the old JNC system. He said it could be manipulated by raising a last-minute claim against an applicant during JNC deliberations, when the applicant had no chance to respond.He also said the process should not be used to end elections for judges, and said judicial canons appear more lenient on what judges seeking a merit retention vote can do than those running in contested elections.“Realistically, merit selection is often filled with hidden agendas, sandbagging, and introduction of derogatory information when the applicant cannot respond,” Barlow said. “It’s very, very important that the citizens maintain some degree of influence in these people [judges] who control our lives.”• Ray Abadin, a member of the Third DCA JNC, said he was proud of the way that commission recently tackled the filling of three vacancies at once, culling through a list of more than 60 applicants, conducting about three dozen interviews, and nominating 18 candidates to the governor.He noted that there was one candidate who was touted to be the governor’s choice for one of the vacancies, and that candidate wasn’t even invited for an interview. The only politics in the process, he added, were local people who wrote or called with derogatory information about individual candidates — information the panel had no trouble checking as part of its review.“Everyone who left our interview process thought they were going to be picked because it was so pleasant,” Abadin said.The only pressure was to pick 18 candidates and not fewer. In response to a question, Abadin said the JNC decided to submit the 18 finalists as a group, rather than try to set slates of six for each vacancy.“We just thought it was too cumbersome for us, and we decided to do 18 and let the governor figure it out,” he said.• West Palm Beach attorney Sherry Hyman went through the JNC process in 2001 and 2002 when she applied for county judge vacancies. Although the interview process was good, she said the overall result seemed to hinge on partisan politics.“I do feel going through the JNC, especially now where you have more and more people selected because they belong to a particular political party, is political,” she said.Allowing the governor to name all of the JNC members is “definitely a chilling effect,” Hyman added, saying she’s not willing to apply again, even though she was nominated but not appointed on her second attempt.Among other judicial independence issues discussed, the committee heard from Rick Levinstein, president of the Martin County Bar. Levinstein said he is working to share a Martin County bar program of reaching out to the public to explain the importance of judicial independence, including showing jury pools a videotape of local judges talking about that issue.“We don’t see this as a political issue,” Levinstein said. “This is a government issue, not a political issue. I think these attacks are an attack on the great foundation of this country. . . and if we don’t respond to them, we harm the soul of the system.”Diner, the committee’s chair, said the Bar is having increasing difficulty in finding people to apply for the JNC seats in which the Bar nominates a slate from which the governor makes the final appointment. He said some candidates have been repeatedly nominated, but not appointed, and now believe it is for political reasons.Diner said from letters the committee has received there is at least a perception of less fairness in the judicial selection process because the governor selects all JNC members, instead of having the membership split among gubernatorial, Bar, and public members.Immediate past Bar President Kelly Overstreet Johnson, who created the committee and is serving on it, agreed, saying, “People are not willing to put themselves out to have their names go up for the JNCs. People can say, ‘Look, here’s what happened for the last three or four years.’”Members also discussed their concerns about attacks on the judiciary, adding that is part of their task.“I’m glad that our mission is not just the judicial nominating process; I’m glad it’s broad. I’m glad that it incorporates that our judiciary has been attacked unfairly,” said committee member Jay Cohen.Supreme Court Chief Justice Barbara Pariente, in a brief appearance, encouraged the committee to seek out coalitions with other groups. She noted that in the recent court funding debates at the legislature, the business community provided strong support for the courts. Likewise, she said, businesses realize the need for accessible, fair, and independent courts in which to resolve their disputes. Independence panel explores the JNC process August 1, 2005 Senior Editor Regular Newslast_img read more