January 1, 2001
Source: State Representative Johnnie Byrd 

President Bush has ended the American Bar Association’s (ABA) nearly half-century role as a screening panel for federal judicial nominees. President Bush said: "It would be particularly inappropriate to grant the politically active ABA a preferential, quasi-official role in the selection process." I commend President Bush on his stand.

In the same vein, the Florida House of Representatives recently passed House Bill 367 removing the preferential role of the Florida Bar in the selection of Florida’s state court judges.

Because nominating and appointing judges has been a rather closed-door process, some Floridians may not even be aware of how judges are currently selected. Here’s how it works. All appellate and some trial judges are chosen by a system of nomination and appointment. Nomination of judges in made exclusively by constitutionally created bodies known as Judicial Nominating Commissions (JNC). Attorneys who wish to become judges must be interviewed and recommended by the JNC. Each JNC consists of nine members, three of whom are appointed by the Florida Bar, three by the Governor, and three appointed by the other six. When there is a judicial opening, the JNC sends a list of between three and six nominees to the Governor, and the Governor must select from that list. The Governor makes final appointment. Thus, under Florida law, the Florida Bar not only has persuasive input, but has binding, legal, control over who is nominated to become a judge.

Arguably, the thirty-year-old JNC system was a well-intentioned effort to take "politics" out of the process. The Bar defends its role the JNC process under the banner of protecting the "independence of the judiciary". This is a stretch, and the Bar knows it. Everyone agrees that the judiciary should be completely independent of outside influences on the decisions a Court makes. No one doubts this to be the case in Florida. Nonetheless, to argue that the "independence of the judiciary" also removes the voters and their elected officials from deciding who becomes a judge has no basis in democratic principle. The elitist notion that only lawyers are competent to pick judges has not stood the test of time.

Writing from retirement in 1816, Thomas Jefferson observed that state court judges are most accountable when elected, "It has been thought that the people are not competent electors of judges learned in the law. But I do not know that this is true, and if doubtful, we should follow principle [popular election of judges]." Jefferson reasoned that the "incessant responsibility" of standing for election by the body politic created the appropriate accountability for a state judiciary. As you see, accountability of the judiciary has been an elusive goal from the inception of our experiment with democracy.

While serving as the Chairman of the Judiciary Committee for two years, I closely examined the JNC process and was struck by how much power the people of Florida have ceded to the Florida Bar. In fact, I was surprised at how politically active the Florida Bar was in the legislative process in general.

Members of the Florida Bar are not elected by the people of Florida, and therefore are not accountable to the people. They represent a distinct special interest.

Just as the ABA has been politically active, so too, has the Florida Bar. The Florida Bar has an agenda. Like the ABA, the Florida Bar claims to be non-partisan, yet the Florida Bar has appointed more than twice as many Democrats as Republicans to the present Circuit Court JNC. That’s 60% to 25%--hardly a balanced number.

Finally, the sadly unfortunate truth is that the JNC process has gained a reputation for nominating judges based on politics, rather than the qualifications of the applicants. The fact is, in other professions such as medicine, nursing, and real estate, it is the Governor who determines who will serve on their professional boards. The Florida Bar, when selecting nominees, has a vested interest. They will be trying their cases in front of these judges.

In an effort to directly address judicial accountability, House Bill 367 returns to the Governor the power to select all nine members of the JNC. Five members of the JNC must be members of the Florida Bar, and four of the members must be non-lawyers. The bill also requires that the Governor seek to ensure that the appointments reflect the racial, ethnic, and gender diversity of the population of the court’s territorial jurisdiction. The Governor is accountable to the people of Florida. This is an upgrade to the system of selection of Florida’s state court judges.

Winston Churchill once said: "To improve is to change; to be perfect is to change often." While we have outstanding judges, our selection process needs to be closer to the people. The old method of selecting judges has been tried for 30 years, and we are now seeing its shortcomings.

We all understand that politics plays a role in all groups, large and small. House Bill 367 takes the politics of selecting judges out of the politics of the Florida Bar, and instead, places that responsibility into the hands of the governor who is accountable to the people of Florida every four years. It is time to move from a closed door political process, to an open and accountable one.