By Gary Blankenship
The Bar Board of Governors has decided to table the issue of increasing the governor’s control over judicial nomining commissions, which is included in pending House and Senate bills.
The board, at its January 27 meeting in Tallahassee, tabled a motion by board member Bill Davis to have the Bar oppose House and Senate legislation that would turn the governor’s five direct appointments to each of the 26 JNCs into at-will appointments. (See story here.)
The legislation does not affect the four appointments to each JNC the governor makes from nominations submitted by the Bar. Those four would continue to serve staggered terms and could only be removed “for cause.”
“Each and every one of us in the room knows this is a bad bill,” Davis said.
“This bill moves us markedly closer to having a politicized judiciary.”
If the bills pass, he argued, it would be the second bad change to the JNCs since 2001. That year, the Legislature changed the JNC setup that had been in place since the commissions were created in the 1970s in the wake of judicial scandals. The JNCs then had three members appointed by the governor, three by the Bar, and those six chose three public members.
In 2001, the Legislature changed that process and gave the governor all the appointments, making five direct appointments and four appointments from slates nominated by the Bar. The terms, however, were staggered, so it would take a few years for a new governor to actually appoint the majority of any JNC.
Last year, a bill cleared the House giving the governor direct appointment of all JNC members and making their terms concurrent with the governor’s. It removed the Bar from any role. Gov. Rick Scott has voiced support this year for increasing his control over the JNCs. The Bar’s existing legislative position opposes any legislation to reduce or remove the Bar’s continuing and meaningful institutional role in the JNC process.
Board member Ed Scales, co-chair of the Legislation Committee, said the committee extensively discussed the JNC bills the day before the board meeting.
“The Legislation Committee’s advice was since this bill did not implicate the Bar’s [legislative] position and since it has bipartisan support . . . and the Senate sponsor has considered this to be a compromise to making all nine members of the JNC serve at the pleasure of the governor, that The Florida Bar would not be involved in this particular legislation . . . ,” he said.
“There are nine members on each JNC, four appointed from slates provided by the Bar. Those four are not affected at all by this bill. Those four continue to serve exactly as they do now,” he added. “An argument can be made that since The Florida Bar members are not affected, they may have slightly more influence because they have continuity.”
Board member Dennis Kainen asked if the board opposed the bill whether legislators might respond by completely removing the Bar from the JNC process.
Board member Ray Abadin, the other co-chair of the Legislation Committee, replied that the advice from the Bar’s legislative consultant was to “let it pass the way it is.”
Board member Jay Cohen said while he might philosophically agree with Davis, the best interests of the Bar might be different.
“The one thing we don’t want to lose is The Florida Bar’s input in the JNC process. That’s the battle that goes on,” Cohen said.
Board member John Stewart said the bill won’t mean much in terms of Scott’s impact on the JNCs. Within the next few months under the current staggered terms, Scott will have appointed about two-thirds of all JNCs members anyway.
“The idea of investing political capital didn’t seem to merit it,” he said.
On a voice vote, the board tabled Davis’ motion.