JNCs and Defining Diversity
Several articles in the June 2018 special edition of The Florida Bar Journal criticize the judicial selection process in Florida. One, titled “A Look Through the Looking Glass …,” draws from an Ohio judge to advocate for the idea that “[j]ustice demands not only equality, but the appearance thereof.” The authors assert that the Bar Board of Governors has set forth a “mission” of the Judicial Nominating Procedures Committee “to assist the governor and judicial nominating commissions in discharging their statutory and constitutional duties.” It is not clear from the article what this “assistance” mission entails or what authority this committee as an arm of the judicial branch has to “assist” the state’s chief executive in his selection, especially since the legislature seems to have given the governor “authority to appoint all commissioners.”
The article cites Mallory v. Harkness, 895 F. Supp. 1556 (S.D. Fla. 1995), rejecting a statutory change that required strict quotas of one-third of all circuit court JNC seats be occupied by either a woman or member of a racial or ethnic minority as a violation of equal protection, but the writers do not make a compelling argument for the application of an “appearance” standard in the appointment of JNCs or explain a clear Bar plan for “diversity” that would satisfy equal protection requirements.
Another article in the special edition titled “Rx Warning…,” by a former Bar president, argues for continued Bar efforts promoting something described as “representative diversity” in the Florida judiciary. The author says “[d]iversity generally encompasses both demographic characteristics — including [but not limited to] gender, ethnicity, national origin, religion, sexual orientation, socioeconomic background, and physical ability — and professional experience.” The “Looking Glass” article defines diversity somewhat differently as “more than race and gender, but also disability, sexual orientation, economic status, and by [sic] practice area and geography.” The Bar Board of Governors’ website definition is as follows: “The term ‘diversity’ has a dynamic meaning that changes as the demographics of Floridians change. Apart from differences in race, color, gender, national origin, religion, age, sexual orientation, citizenship, and geography, to mention a few, the public and our profession will experience changes in thought, culture, and beliefs. These demographics are constantly in flux. Defining ‘diversity’ based on current differences would limit its application to future changes, and likewise restrict or limit The Florida Bar’s consideration of and response to such changes.” All of which begs the questions: What is this nebulous concept that cannot be clearly defined, but must be reflected in our Bar, bench, and JNCs? How can it be discussed without a clear definition, and how can the Bar implement and maintain a functional model of an indefinable concept?
Are we looking through a looking glass at a prescription for equality or going down a rabbit hole into chaos? I know this subject is sensitive and taboo to some for various reasons, but can’t we at least clearly explain where our organization is taking us and why?