by Mike Sharkey
Staff Writer
Thirty-eight years ago, then Florida Gov. Reubin Askew created by executive order what many saw — and have grown to believe — as the fairest way to appoint the various levels of the state judiciary. For the next 30 years, Judicial Nominating Commissions statewide — consisting of three members appointed by the governor, three appointed by the Florida Bar and another three non-lawyers chosen by the six other appointees — evaluated judicial nominees for County, Circuit, Appellate and State Supreme Courts. Those JNCs interviewed the nominees in person, scrutinized their resumes and legal careers and took recommendations into consideration.
Ultimately, the JNCs would produce a short list of 2-4 names and send that list to the current governor, who had the final say in the appointment.
Race, gender, political affiliation, personal relationships to anyone and several other factors were not among the qualifications. According to Mike O’Neal, president of the Jacksonville Chapter of the American Board of Trial Advocates, the best-qualified candidates were sent to Tallahassee for consideration.
This process changed in 2001 when former Gov. Jeb Bush signed legislation that dramatically altered this vetting process, thus taking much of the decision-making process out of the hands of the JNCs and placing it in the governor’s.
O’Neal has sent a letter — on behalf of the entire Jacksonville ABOTA chapter — to Gov. Charlie Crist asking him to reinstate Askew’s executive order. O’Neal contends the JNCs assure the judicial nominating process remains the ultimate form of checks and balances for the executive and legislative branches and provides the best process for sending qualified — not politically-connected — candidates to the governor for appointment to the bench.
O’Neal’s concerns revolve around a decision Crist made last year when he took all 60 days allowed by law to consider an appointment to the Fifth District Court of Appeal in Daytona Beach. In a May 21 Miami Herald story, Crist said in a Dec. 1 letter to the JNC chair for that appointment that “at least three well-qualified African-Americans applied for the nomination.” Crist asked the JNC to reconvene and reconsider what he called “important nominations” and submit a new list.
It’s this kind of executive oversight that O’Neal is looking to eliminate, especially on the nomination level. He and Jacksonville ABOTA Treasurer Jake Schickel both admit the final decision rests with the governor. However, they both feel the nine-member JNCs do a more-than-adequate job of vetting all of the applicants.
“He (Crist) has started tinkering with the purely subjective system and we think that is wrong,” said O’Neal, who has sent multiple letters to Crist and requested a meeting with Crist to discuss the issue, all to no avail. “The judicial branch provides the checks and balances to the legislative and executive branches. When the executive branch starts tinkering with the judicial branch, which is what we think Gov. Crist is doing, you lose those checks and balances.
“This is setting a bad precedent and about all we can do is lobby the governor.”
Schickel said O’Neal’s letter speaks for him and the Jacksonville ABOTA chapter.
“That letter lays it out thoughtfully and I agree with it entirely,” said Schickel. “Our intent is to have the best qualified candidates appointed judges. We are going through the process now with the U.S. Supreme Court.
“In Florida, we vet the candidates through the people. The Bar has input and the community has input. That ensures the integrity of the court. I think Gov. Askew recognized the importance of having qualified judges and a vetting process.”
Schickel said Askew’s only mistake was not placing the JNCs in the State Constitution, thus making the JNC process virtually untouchable. Schickel also said the process isn’t totally broken. It’s cracked, but still partially functional.
“As long as the integrity of the person making the appointment is beyond reproach, nothing is wrong,” said Schickel. “Crist is a lawyer and the understands the process. He is in a great position to take us back to where we were before Gov. Bush (made the change).”
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