Judicial selection in Florida: an executive branch perspective.

• Author: Rodriguez, Raquel A.

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 judiciary (18) 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...