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June 15, 2014
‘Meritocracy and diversity’ are key to judicial legitimacy

The Florida Bar Board of Governors has unanimously approved the report and recommendations of the President’s Special Task Force to Study Enhancement of Diversity in the Judiciary and the Judicial Nominating Commissions. The report presents 10 recommendations to increase diversity among JNC members and appointed judges.

The report, recommendations, and appendices are posted on the Bar’s  at www.floridabar.org.

Eugene Pettis President Eugene Pettis said the 11-member task force was comprised of people committed to ensure that improvements are made without any consideration of partisanship, and that the members brought valuable perspectives and experience to the effort.

Pettis appointed the task force earlier this year after a review showed declining diversity both on the bench and the JNCs. Its members included representatives recommended by the Governor’s Office, former judges, JNC members, and members of voluntary bar associations.

“It is now time for bold leadership to stay focused and advance this issue,” Pettis said.

The first recommendation encourages Gov. Rick Scott to fill the 78 vacancies on JNCs next month with diverse appointments. The second recommendation calls for the Bar to work with the governor to let JNC appointees know that diversity matters. Additionally, the report urges the governor not to reject slates of nominees the Bar recommends from its rigorous review and selection process.

Since the JNC process was changed in 2001 giving the governor more control of appointments, Scott is the first governor to reject the nominees provided by the Bar, which he has done 18 times. The statute governing JNC appointments does not require him to give a reason.

Frank Scruggs, task force chair, who previously chaired a Supreme Court study commission on racial and ethnic bias in 1990, presented the report and recommendations to the board on May 23 in St. Augustine.

“The theme of this report is expressed simply. It is that meritocracy and diversity are twins. The legitimacy of the judicial system is founded both on meritocracy and diversity,” Scruggs said.

Of the upcoming 78 JNC appointments, he said, “This is not a time for incrementalism, for a minor adjustment. This is a time to signal a clear break from the past with a dramatic and substantial honoring of the statute [governing JNC appointments] and the process by which The Florida Bar has forwarded the nominations. . . . Seize this golden opportunity and make substantial and dramatic numbers, make a grand gesture to open the doors of the JNC appointments.”

Frank Scruggs Scruggs said the task force surveyed Florida lawyers regarding the JNC appointment process and JNC operations. Respondents were Bar members who currently serve on JNCs, lawyers who have applied to JNCs for consideration for judicial vacancies (“JNC applicants”), and lawyers from the general Bar population.

He highlighted one portion of the survey where three-fourths of respondents from the general sample and nearly two-thirds of the JNC applicants indicated that too often partisan politics are more important than merit in determining who is selected to serve on JNCs. Of those surveyed, 82 percent of African-Americans, 69 percent of Asian-Pacific Islanders, and 55 percent of Hispanics said that lawyers from diverse racial or ethnic groups do not have the same chance as other candidates to be chosen for JNC membership.

Concerning JNC operations, the task force concluded that there is a compelling need to institutionalize oversight of JNCs to assure accountability for fulfilling F.S. §43.291(4), which requires that the governor ensure that JNC members reflect the demographics of the state.

That recommendation specifically calls for the Office of the Governor and the Bar to appoint a diversity officer and work together to:

* Review the processes used by JNCs in identifying, recruiting, and evaluating nominees for appointment to Florida’s judiciary;

* Determine whether JNC processes impede recruitment and nomination of applicants diverse in race, ethnicity, gender, color, national origin, sexual orientation, physical disabilities, or status as a protected veteran under federal law; and

* Redirect processes through reforming JNC outreach, interview, and evaluation methods.

Other recommendations address ways to recruit diverse lawyers to apply for JNCs and for judgeships and to provide assistance to diverse judges when they first stand for election subsequent to their appointment. The report found that minority judges frequently attract opposition in their first election following appointment to the trial bench.

Pettis said that he will direct implementation of the action items from the report during his final 33 days as Bar president and then pass the baton to President-elect Greg Coleman to continue to lead the Bar’s efforts. He said a copy of the report will be hand-delivered to Gov. Scott to “start talking about the question: . . .How do we start moving forward to make a real difference?”

“It is significant that 50 years ago in St. Augustine, events related to injustices on the streets and in the court were pivotal in the breakthrough for enactment of the Civil Rights Act,” said Pettis. “We should celebrate where we are today and continue to move forward with these recommendations to improve Florida’s judicial system.”

Coleman said he plans to have an update at all board meetings for the 2014-15 Bar year to review the report’s recommendations.

“Every meeting we can refocus on this and make sure we’re doing all we can and make sure it doesn’t get lost in the shuffle,” he said.

Of the 78 appointments to be made this year (three to each of the 26 JNCs), Scott will directly appoint 26, and the remaining 52 will be chosen from Bar nominations. Later in the meeting, the board chose six lawyers for each of the JNCs for the governor’s consideration. (See article here.)

[Revised: 09-22-2014]