By Martin Dyckman
St. Petersburg Times
May 22, 2005
TALLAHASSEE - Unlike the uproar in Washington, Florida politicians quietly compromised a potentially nasty fight over judges by simply splitting the baby. Gov. Jeb Bush will appoint 55 new circuit and county judges but voters will elect another 55 in the fall of 2006.
That's if the deal holds through next year's legislative session, when the second group is supposed to be authorized and funded. It could fall apart if Bush claims the constitutional power, which some lawyers think he may have, to fill all new judgeships regardless of what the Legislature says. In that event, the Legislature probably would not create them.
The compromise was overshadowed by a huge debate over Senate President Tom Lee's insistence, which he later said he regretted, that no judgeship be created for Rep. Bruce Kyle, R-Fort Myers. But the larger issue was far more important to people who believe that the governor's office has become too powerful under Bush.
The decision not to let him appoint all 110 reflects mixed motives among legislators. Some, like Lee, R-Tampa, assert a philosophical preference for elected judges. Some, unlike Lee, are lawyers who want to be judges but doubt that Bush would appoint them.
"We ought to make a reasonable effort to elect all of our representatives. . ." said Lee. "I think the governor has a right to make these appointments if we give him the authority, but I just prefer to see people run for election."
Others, including even some Republicans, worry that Bush is politicizing the judiciary and think that the election process, for all its faults, would produce judges with fewer biases. This point of view reflects a growing concern in the Florida Bar, which is considering whether to sponsor an initiative aimed at depoliticizing the appointment system.
It would overcome a law the Legislature passed at Bush's insistence in 2001 to let him name all nine members of each of the 26 nominating commissions that screen would-be judges for appointment. Six of each panel must be lawyers, four of whom have been recommended by the Bar, but his control is so dominant that nearly eight of every 10 commissioners are now Republican. That has allowed him to appoint several appeals court judges whose conservative ideologies are their most conspicuous credentials.
The previous system, set up by Democratic Gov. Reubin Askew in the early 1970s, was difficult if not impossible for a governor to manipulate. The governor appointed three members of each commission. The Bar chose another three. Those six members would then appoint three more.
Governors had been free to choose whomever they wished and often awarded judgeships as patronage. Askew's decision to limit his own power was inspired by several controversial appointments by his predecessor, Republican Claude Kirk. One of those, Supreme Court Justice David McCain, turned out to be so unethical and corrupt that he had to resign to avoid being impeached 30 years ago.
Burton Young, the Bar president who negotiated Askew's reform, described it as "the greatest thing that had happened to the administration of justice." But Young said bitterly last week that Bush "went and emasculated it" and that "we're right back to where we started." Young, who still practices law at North Miami Beach, is so appalled that "If I had a vote today, I'd vote to elect" all judges. Even appellate judges.
"If we don't have an absolute merit selection process that is almost guaranteed to produce the best and the brightest, I certainly would trust the electorate more than I would somebody like Bush or anybody else who would appoint judges who are politically motivated, not legally motivated," Young said. "I can't tell you how offensive it is to me . . . toying with the independence of the judiciary is one of the worst political crimes anyone can commit."
Gerald F. Richman of West Palm Beach is another Florida Bar president with second thoughts. Three times the Bar recommended him to Bush for membership on an appellate nominating commission. The governor picked someone else each time. That was no surprise to Richman, who had been lead counsel against George Bush in one of the 2000 election lawsuits; still, he accuses the governor of having "egregiously corrupted" the nominating process to the extent that "many judicial candidates decide not to waste their time applying. . . if they are not of the right party, and instead run for office."
This is more serious than Democratic sour grapes. The significant difference is that there were no such complaints when Republican Bob Martinez was governor.