by Raquel A. Rodriguez
Florida’s judicial selection system has undergone numerous changes since the adoption of Florida’s first constitution in 1838. Each method of selection, from election to appointment, has had its supporters and its detractors.
The current hybrid system of elections and appointments most recently was modified by the Florida Legislature in 2001.1 Prior to 2001, the governor named three members to the judicial nominating commission; The Florida Bar named another three; and those six commissioners decided on the final three members.2 Under the 2001 amendments, the governor has authority to appoint all commissioners. Four of the commissioners, however, must be selected from names submitted by the Bar. Although the governor has the authority to reject the entire slate of Bar nominees and call for a new one, to date this power has never been invoked.
One or more Bar leaders have decried any modification of the Bar’s role in judicial appointments as a threat to judicial independence.3 The purpose of this article is to provide an executive branch perspective on the history of Florida’s judicial selection system and to show that, contrary to the concerns voiced, separation of powers in Florida is alive and well under the current judicial nominating process. In fact, the special role advocated by The Florida Bar encroaches on Florida’s constitutional separation of powers.
Florida’s 1838 Constitution, which was not effective until statehood in 1845, provided for all judges except justices of the peace to be elected by “the concurrent vote of a majority of both Houses of the General Assembly.”4 When a separate state supreme court was created in 1851, the legislature elected the justices for eight-year terms.5 Constitutional amendments adopted by the voters in 1852 subjected circuit judges to popular election for six-year terms.6
Following Florida’s readmission into the Union, the 1865 Constitution provided that the governor would appoint the justices of the supreme court for six-year terms with the advice and consent of the senate.7 The governor could select new justices at the end of the term.8 Circuit judges continued to be popularly elected.9 Vacancies in chancery and circuit judicial offices were filled by writ of election issued by the governor, unless the vacancy was short-term, when it could be filled by a governor’s appointment.10
The election of circuit judges was eliminated with the adoption of the 1868 Constitution, which then provided for eight-year term appointments by the governor with the advice and consent of the senate.11 Supreme court justices obtained lifetime tenure “during good behavior.”12 The 1868 Constitution also created the county courts, subject to the same appointment process as circuit courts, except that county court judges’ terms were for four years.13 In addition, the governor could appoint as many justices of the peace as “deemed necessary.”14
In 1885, the selection of supreme court justices and county judges was given to the electorate, while the governor and senate continued with their respective appointment and confirmation roles with respect to circuit judges.15 That process remained in place until the general election of 1948, when a 1942 amendment restored the popular election of circuit judges.16 Under a still existing provision of the 1885 Constitution, the governor had the sole power to fill judicial vacancies by appointment until the next general election.17
The 1956 Constitution created the district courts of appeal. While these judges were elected, the governor was granted a significant amount of power to shape the judiciary18 through an amendment to Article V, which required the legislature to “provide for one circuit judge in each court for each fifty thousand inhabitants or major fraction thereof.”19 The supreme court interpreted this amendment as giving the governor the “authority and duty to fill such vacancies by appointment.”20 Article V remained untouched until 1972, when the Constitution Revision Commission undertook a wholesale revision.21
In 1971, Governor Ruben Askew issued an executive order creating “Judicial Nominating Councils and Procedure,”22 which would create nonpartisan advisory councils to “aid the constitutional discretion reposed in the Governor to fill vacancies.” The governor would appoint three active Florida Bar members; The Florida Bar would appoint three active Florida Bar members; and those six would together appoint three citizens (not necessarily lawyers). The governor also designated the chair of each council. These advisory councils were to nominate at least three “fully qualified” nominees for the governor’s consideration. A little-cited provision in the executive order provided that the governor retained sole discretion to reject any or all of the nominees or to ask for additional nominees. Thus, while advisory councils were helpful in identifying nominees who met the qualifications set forth in the executive order, it never took away the governor’s ability to exercise full discretion in rejecting nominees that were not to the governor’s liking, regardless of how otherwise qualified they might be.
In 1972, Florida’s citizens had an opportunity to vote on a wholesale revision of Article V.23 Among the amendments adopted was a judicial nominations commission requirement for filling judicial vacancies.24 That provision followed closely the model created by Governor Askew’s executive order. Unlike the executive order, however, the amendment purported to obligate the governor to appoint a judge from “not fewer than three” nominees. Pursuant to that new article, the Florida Legislature established the nominating commissions consisting of nine members: three “electors” appointed by the governor; three members of The Florida Bar appointed by the Bar’s Board of Governors; and three non-Florida Bar members appointed by a majority vote of the other six.25
The profile and influence of the judicial nominating commissions increased in 1976. The 1976 amendments eliminated the popular election of district court of appeal judges and supreme court justices,26 giving birth to today’s merit retention system. The nominating commissions not only limited the governor’s discretion in filling vacancies, but for all intents and purposes also became the gatekeepers of the supreme court and district courts of appeal.27 The governor could choose only from a slate of three nominees;28 however, the circuit court judicial nominating commissions still nominated “not fewer than three.”29 A 1996 amendment reconciled the nominations process for trial court and appellate vacancies, providing that the governor appoint “one of not fewer than three persons nor more than six persons” nominated by the appropriate commission.30
In 2001, House Joint Resolution 627 vastly sought to restrict the powers of the judicial branch and take back much of what power had been granted in 1956 and 1972.31 Among the proposals was the elimination of nominating commissions altogether, in favor of the appointment and consent power of the governor and senate. HJR 627 died in committee. Another house bill sought to grant all judicial nominating commission appointments to the governor.32 A compromise creating today’s system preserved the role of The Florida Bar in the judicial nominations process. Then Florida Bar President Terry Russell hailed the compromise as a great victory for the Bar: “[T]he merit selection process will remain intact, with judicial nominating commissions having a minimum of six lawyers, as opposed to the previous three, and with The Florida Bar nominating persons from which the Governor must select four lawyers as opposed to our previous three.”33
However, Russell lamented that “[g]radually, a governor will be able to fill the JNCs with ideologically compatible people, thus injecting partisan political influence into the judicial selection process.”34 The current Bar president, Kelly Overstreet Johnson, has repeated this mantra.35 Implicit in these opinions is an assumption that such newly constituted commissions somehow threatened the separation of powers.36 Also implicit is the belief that limiting the executive power in the judicial appointments process produces a better quality of nominees, unsullied by any political or personal biases of the commissioners. Neither of these assumptions is necessarily correct.
Despite the best intentions of the drafters of the 1972 constitutional amendments, charges of politicking and cronyism have haunted nominating commissions from time to time.37 In any system where individuals have to make subjective decisions about other people, these types of controversies are inevitable. Many factors go into determining who is the “best qualified” for a position. Because of confidentiality rules, commissioners are not at liberty to fully explain their decisions. But the mere fact that the 1972 structure limited the governor’s appointments to the judicial nominating commissions by assigning automatic selections of commissioners to The Florida Bar did not prevent concerns about whether the “best qualified” were being nominated.38
Even assuming that mandating a role for The Florida Bar produced the “most qualified” judges 100 percent of the time, or even most of the time, it is still difficult to overcome the separation of powers problem created by the 1972 legislation until its amendment in 2001. Contrary to the assumptions underlying the concerns of Florida Bar leaders about the 2001 statutory amendments, the current makeup of the judicial nominating commissions preserves the separation of powers that has existed since Florida’s first constitution in 1838.
From the constitution’s earliest days, separation of powers was imbedded in our state’s system of government.39 The 1838 Constitution mandated that a justice or a judge should have “no duty not judicial” imposed by law on them.40 At no time in Florida’s history did the constitution ever provide for the judicial branch to appoint or confirm its own members. It is simply not a judicial function.
In contrast, Florida law holds that judicial nominating commissions are part of the executive branch, because the appointment of judges is the “sole and final responsibility” of the governor.41 This is a constitutional power so firmly entrenched that the legislature cannot place any limitations upon it.42 Like the actual appointment itself, the nomination of persons for appointment also is an executive function.43 The only power that the legislature has in this process is the setting of the number of commissioners and their method of selection.44 But even when the legislature is empowered by the constitution to implement a constitutional provision “by general law,” it still must conform to the dictates of Art. II, §3:
Branches of government. — The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall execute any powers appertaining to either of the other branches unless expressly provided herein. (Emphasis supplied.)
The implementing legislation that followed the 1972 revision in granting The Florida Bar the absolute power to appoint commissioners and to have its commissioners vote on other commissioners would seem to run afoul of the separation of powers. The Florida Bar is an arm of the Florida Supreme Court and is regulated by it.45 Thus, the pre-2001 system of appointing Florida judges gave the judicial branch the power to engage in a uniquely executive function. No reported appellate decision or advisory opinion has addressed this question, but it follows logically.
The constitutional saving grace of the legislation passed in 2001 is that it grants the governor the discretion to veto all the Bar’s nominees (even though the governor must still choose from a new slate submitted by the Bar). This is not unlike the veto power Governor Askew reserved for himself in his 1971 executive order. The power to veto nominees to either the commissions or the bench preserves the executive power and maintains the separation of powers, regardless of whether the governor ever actually exercises that right.
Moreover, the shifting back of power to the executive branch is consistent with Florida’s history of having some form of accountability for the judiciary. For over 150 years, all judges in Florida were either popularly elected, or elected or appointed by the political branches—which themselves were elected. Today, neither a governor nor the legislature can remove a sitting judge at will, as was the case under earlier versions of the Florida Constitution. But a judge can be still disciplined by the supreme court or impeached. A judge whose conduct falls short of the criteria required for these drastic measures can be defeated by an opponent or in a merit retention vote. No appellate judge has ever lost in a merit retention vote, but the fact that the people retain that right is an important check on the most egregious instances of incompetence or corruption. Some say that in a purely elective system few sitting trial judges ever face opposition, so it is hard to unseat a bad judge. This is not necessarily the case. Even if it is difficult to defeat a judicial incumbant, one could argue that the problem lies more with a system that allows lawyers to make contributions to the judges before whom they must appear in their legal practice. If lawyers were courageous enough to refuse to make contributions to bad incumbents, potential challengers would not be scared off by incumbents’ campaign war chests.
Similarly, a governor who abuses the power to appoint judges by selecting political cronies who are incompetent or corrupt is answerable to the citizens who elected him. These same citizens retain the right to vote out any questionable judges a governor may appoint. Thus the constitution preserves a system of checks and balances to curb the abuse of executive power while still respecting the separation of powers.
The legislature and The Florida Bar worked out a good compromise in 2001. As with any process, no system of selecting judges will ever be completely free of error or controversy. The obligation rests on those who are granted the power under our system of government to use it responsibly. If that power is abused, the citizens will take it back or limit it, as they have done since the earliest days of our state’s history.
1 Fla. Stat. §43.291 (2001).
2 Fla. Stat. §43.29 (1999).
3 See generally Russomanno, An Independent Bar and Judiciary: As American As Baseball and Apple Pie, 75 Fla. B.J. 4 (May 2001); Russell, As I See It, 75 Fla. B.J. 6 (July/August 2001); Johnson, A Year to Sustain, Examine, and Defend, 78 Fla. B.J. 10 (July/August 2004).
4 J.W. Little, An Overview of the Historical Development of the Judicial Article in the Florida Constitution, 19 Stetson L. Rev. 1, 3 (1989), citing Fla. Const. of 1838, art. V, §11.
5 Id. at 6.
7 Id. at 7.
10 Id. at 8.
11 Id. at 10.
12 Id. at 9.
13 Id. at 10.
14 Id. at 11. Justices of the peace could not try any person for misdemeanors or crimes. Id.
15 Id. at 16.
16 Id. at 23.
17 Id. at 29–30.
18 See id. at 24.
20 Gray v. Bryant, 125 So. 2d 846, 861 (Fla. 1960); Little, supra note 4, at 24.
21 Little, supra note 4, at 26.
22 Executive Order 71-40A.
23 Talbot D’Alemberte, The Florida State Constitution: A Reference Guide 14 (1991).
24 Fla. Const. art. V, §11(a) (as amended 1972).
25 Id. at 30; Fla. Stat. §43.29 (1973).
26 Id. at 35; Fla. Const. art. V, §10(a) (amended 1976).
27 Fla. Const. art. V, §11(a) (amended 1976).
28 Little, supra note 4, at 35; Fla. Const. art V, §11(a) (amended 1976).
29 Fla. Const. art. V, §11(b) (amended 1972).
30 Fla. Const. art. V, §11(a), (b) (amended 1996).
31 HJR 627 Relating to Judiciary (2001).
32 H.B. 367 (2001).
33 Russell, supra note 3, at 7.
35 Johnson, supra note 3, at 10.
36 Russell, supra note 3, at 7. (“We must, as guardians of the state’s legal system and consistent with our oath of admission, maintain the separation of powers and a judiciary that is fair, impartial, and unbiased, i.e., independent.”)
37 See Editorial, JNC Fiasco May Yield Good Result: Reform of Judicial Selection Process, Sun-Sentinel (Ft. Laud.), Feb. 7, 1996; White v. Bush, 9 Fla. L. Weekly Supp. 835 (Oct. 29, 2003); see generally Victoria Cecil, Merit Selection and Retention: A Great Compromise? Not Necessarily, Court Review 20 (Fall 2002).
39 See Little, supra note 4, at 38.
40 Little, supra note 3, at 4 (citing Fla. Const. art. V., §20). In fact, it was not even until the 1972 revision that the judicial branch even acquired the constitutional power to adopt its own rules of procedure, the chief justice became the chief administrative officer of the courts, and the supreme court acquired the power to discipline all state judges, although impeachment is still an option for the legislature in certain egregious cases. See Little, supra note 4, at 27–28, 30–31.
41 In Re Advisory Opinion to the Governor, 276 So. 2d 25, 29–30 (Fla. 1973); Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d D.C.A. 1977); White, 9 Fla. L. Weekly Supp. at 836.
42 In Re Advisory Opinion to the Governor, 276 So. 2d at 29.
45 See Rules Regulating The Florida Bar.
Raquel A. Rodriguez is general counsel to Governor Jeb Bush.