The Great Oz: What Really Happens Behind the Curtain of JNC Deliberations
The Judicial Nominating Commission (JNC) process is daunting for even the most seasoned applicant. While the procedure for the appointment of a person to fill a judicial vacancy is governed by the Florida Constitution,1 the law is silent as to the factors taken into consideration by the JNC commissioners and the governor in selecting an appointee. This article demystifies the process and provides insight into qualities possessed by successful applicants appointed by the governor to serve in a vacant seat.
For the JNC commissioners, the process begins well before candidates apply and are interviewed. The procedure is initiated by a letter from the governor to the chair of the JNC advising of a vacancy in the judicial circuit.2 the letter requests that the chair convene the commission to select and submit names of highly qualified lawyers to the governor for his or her consideration for appointment to the open seat. Generally, the letter also specifies how many nominees the governor would like the commission to submit.3
Upon receipt of a notice of vacancy letter from the governor, the chair notifies the public of the opening and creates timeframes for the submission of applications.4 Once the applications are received, the commission convenes, either in-person or on a conference call, to decide whom to invite for an interview.5 the number of applicants granted an interview varies from circuit to circuit. For example, the 10th Judicial Circuit JNC, which serves Hardee, Highlands, and Polk counties, typically grants interviews to all applicants. In contrast, the 11th Circuit JNC, which serves Miami-Dade County, employs a more selective process in which not all applicants will be invited to interview.
Hans Ottinot, chair of the 11th Circuit JNC, advises that the commission first reviews the applications to confirm they are complete. He noted that “the little things count,” and that applicants need to take care to ensure they have provided all of the information requested and that the application is devoid of typos. At this stage, the 11th Circuit JNC also makes certain each candidate possesses certain minimum qualifications, including verification of courtroom experience. A candidate “does not need to be a trial lawyer, but if someone wants to be a trial judge, they need to have some experience with the court system,” explains Ottinot.6
Prior to the interviews, each commissioner is assigned to specific individual applicants and is tasked with conducting individual research on these applicants. The completed application will typically include a list of the candidate’s significant cases and attorneys the candidate has litigated against.7 Accordingly, the research conducted by the commissioners may involve contacting opposing counsel in matters handled by the candidate, contacting judges in front of whom the candidate may have appeared, and contacting references listed by the candidate. Additional research includes criminal background checks, confirmation the candidate is a registered voter, and determination as to whether the candidate has any Bar complaints lodged against them. This process, explains former JNC Chair of the 10th Circuit Robert Swaine, “provides insight into a candidate’s character and fitness for the judiciary.” For example, in checking an applicant’s references and contacting the members of the legal community included in the application, the commissioners learn how a candidate conducts themselves with other lawyers, opposing counsel, and judges.
After the background research is complete, the interviews are conducted before the commission. Utilizing the application, background research, and the interview, commissioners evaluate an applicant’s temperament, demeanor, and professional experience.8 they seek to determine a candidate’s judicial philosophy, their ability and experience addressing substantive legal issues, and assess their ability to deal with other lawyers and judges. The commissioners also evaluate a candidate’s community involvement and their interactions with the public. This latter factor is important because after being appointed, the successful applicant will have to run for office in order to maintain their judicial seat. If the applicant does not have significant community support and the ability to raise money, the appointment will be short-lived because the applicant cannot retain the seat.
In sum, Ottinot explains that commissioners “want a judge to apply the law as it is, want a judge who will call it like it is, make tough decisions when necessary, apply the law and be impartial.” The JNCs are looking for applicants who will do just that. Daniel Nordby, general counsel to Gov. Scott, concurs with this assessment, stating that “Gov. Scott always values the opportunity to appoint men and women of integrity, intelligence, and humility to serve on the bench. Above all, the governor is looking for nominees who will follow the law, who will interpret the law according to its plain and ordinary meaning, and who understand the judicial role under our constitution.” Nordby also emphasizes the importance of courtroom experience and community involvement, recognizing that “although successful judges have been appointed from a variety of professional backgrounds, courtroom experience and community involvement can be particularly valuable for trial court appointees who may be required to campaign to retain their seats.”
In order to maximize the opportunity for success, Swaine advises applicants to “familiarize yourself with the process and reach out to JNC members to understand the procedure.” For example, in the 10th Circuit during the JNC interview process, the commissioners “give applicants opportunities to give an ‘opening statement.’ That is something you would want to know” in advance, states Swaine.
After the interviews, the commissioners discuss the various applicants and hold a vote. Swaine explains that in his circuit, after a discussion of each applicant, each commissioner writes out who would be on their list of nominees they would send to the governor. Once the votes are tallied, Swaine states that it is usually “very clear who has received the top votes and decisions are often unanimous.” The nominations are certified to the governor,9 who will make the appointment within 60 days.10 Nordby acknowledges that “the governor’s office welcomes letters of support from anyone in a position to comment on a nominee’s qualifications.”
Importantly, it is not the end of the road for an applicant if they are not appointed to fill the vacancy. Nordby explains that “nominees who are not appointed by the governor to a particular vacancy are encouraged to reapply for future vacancies. It is frequently the case than an appointee will have been nominated on more than one occasion before being selected for appointment as a judge.” Ottinot echoes Nordby’s guidance and encourages all applicants, even those whose names were not included on the list of nominees submitted to the governor, to reapply. “It is a process,” states Ottinot. “You have to persevere.” According to Ottinot, the 11th Circuit JNC has a “very open-door policy to those who did not make it. Commissioners will meet with the applicant to discuss areas on how to improve,” noting that when applicants take the commissioners’ advice, they see significant difference in the strength of the application.
In the 10th Circuit JNC, although there is “no formal process for feedback” for unsuccessful applicants and, according to Swaine, the JNC does not share with applicants why they were not successful, these applicants are also encouraged to reapply. Swaine emphasizes that “most successful applicants have applied more than once.” There are many reasons why an applicant may not be included on the list provided to the governor. Swaine explains that it “could be lack of experience,” which could be addressed by spending a few more years obtaining practical and substantive experience. Or, it may be that the applicant pool was filled with many very qualified applicants and a candidate — although not nominated — could still be qualified and should reapply.
Conclusion
In sum, candidates seeking to apply for judicial vacancies should reach out to their local commissioners to understand the nuances of the application and nomination process applicable to their particular JNC. Courtroom experience, community involvement, and strong character are qualities most often possessed by successful appointees. Perhaps most importantly, many appointees have applied for and gone through the JNC process more than once. Applicants who desire to sit on the bench should not be discouraged if they are unsuccessful their first, second, or even third time applying for appointment to a vacancy. This is clearly an instance in which persistence can be rewarded.
1 See, e.g., Fla. Const. art. V, §11; Fla. Const. art. X, §3.
2 See, e.g.,letter from Daniel E. Nordby, Gen. Counsel to Governor Rick Scott, to Luis E. Suarez, Chair, 11th Circuit Judicial Nominating Commission (Sept. 25, 2017), https://www.flgov.com/circuit-and-county-courts-2018/.
3 The JNC may nominate anywhere from three to six persons for consideration for a judicial vacancy. Fla. Const. art. V, §11(b).
4 See, e.g., The Florida Bar, 11th Circuit Judicial Nominating Commission Announces Vacancy in Miami-Dade County Court (Jan. 28, 2018), https://goo.gl/XmUsQc.
5 The Florida Bar, Understanding the Florida Judicial Nominating Commission and Judicial Application Process, https://goo.gl/LKFe1U.
6 Id.
7 Office of the Governor, Application for Nomination to the Court, https://www.flgov.com/judicial-and-judicial-nominating-commission-information.
8 See The Florida Bar, Understanding the Florida Judicial Nominating Commission and Judicial Application Process, https://goo.gl/LKFe1U.
9 See, e.g.,Fla. Const. art. V, §11(c).
10 Id.
REBECCA OCARIZ is a partner at Akerman LLP who focuses on product liability and mass tort disputes, representing pharmaceutical and medical device manufacturers, and other life science, retail, and technology companies. She currently serves as a member of The Florida Bar’s Judicial Nominating Procedures Committee, and is a past president of the Florida Association for Women Lawyers Miami-Dade Chapter.
