A Look Through the Looking Glass: The JNC and Judicial Nominating Process "Deconstructed".

• Author: Edwards, Linda Bond
• Position: Florida's 26 judicial nominating commissions

"Judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment."--Deuteronomy 16:18, King James Version

The people of the state of Florida, through their elected officials, have chosen "merit selection" as a method of choosing judges through appointment. While the trial bench has remained subject, in part, to the elective process, the state's appellate courts are solely within the province of the appointive process. Florida is one of 24 states, as well as the District of Columbia, in which judges are appointed to the bench using a nominating commission. Florida's 26 judicial nominating commissions (JNCs) follow five basic steps in the appointive process: 1) acknowledging and advertising the judicial vacancy; 2) receiving applications by interested candidates; 3) vetting and interviewing prospective candidates by the nominating commission; 4) formulating a "short list" of nominees to be forwarded to the governor; and 5) the governor appointing a candidate from the list to fill the judicial vacancy. (1)

JNCs in Florida: From the Beginning

Before the adoption in 1968 of art. V of the revised Florida Constitution, judges were elected by partisan ballot. In the late 1960s, Gov. Claude Kirk agreed to a "judicial screening program," Florida's first attempt at a form of merit selection. In 1971, with the passage of H.B. 468 implementing art. V, Florida moved from a nonpartisan ballot to a merit selection system for filling interim vacancies.

On July 23, 1971, an executive order by Gov. Reubin Askew established judicial nominating councils, which became the basis for Florida's current judicial nominating commission system of merit selection, and made applicable to new appointments and midterm vacancies at all levels of the state judiciary by a 1972 constitutional amendment. (2)

The current hybrid system of elections and appointments most recently was modified by the Florida Legislature in 2001. "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. Under the 2001 amendments, the governor [gained] 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," (3) until Gov. Rick Scott took office, no governor had ever invoked that authority. Since taking office, Gov. Scott has repeatedly rejected lists submitted by The Florida Bar. (4) The statute, however, does not require the governor to provide a reason for the rejection.

F.S. [section]43.291 is the codification of the governor's appointment powers for the JNCs. One of the key components of the appointment process was the reference to diversity spelled out in...