Thurgood Marshall learned during his nearly 25 years on the U.S. Supreme Court what it feels like to be outnumbered on the bench. Not only was he the only black man on the High Court, but Marshall became known as “The Great Dissenter.” Republican administrations packed conservative justices on the Court and Marshall ended up, more often than not, in the minority decision.
Throughout American history, like it or not, our judicial system has been stacked on the basis of the content of judges’ political leanings, not necessarily the worthiness of their merit. Few have done this as blatantly, though, as Florida Gov. Rick Scott.
The Florida Legislature opened a Pandora’s box of partisanship and discrimination when it allowed the state’s governors in 2001 to appoint all the members of every Judicial Nominating Commission. Unlike his predecessors, Scott has shown little interest in merit or diversity and more interest in ensuring loyal Republicans fill the committees, who appoint all the judges to the state courts.
He is the only governor since 2001 to turn down recommendations from the Florida Bar. Scott has rejected 18 different lists of lawyers recommended by the Bar to serve on nominating commissions. And this month, Scott gets to make 78 JNC appointments.
The unstated goal? Eventual conservative dominance of Florida’s Supreme Court and judicial system.
Today, only two of the seven justices vote faithfully with the right wing agenda—Chief Justice Ricky Polston and Justice Charles Canady. Former Republican Gov. Charlie Crist promoted them from the First District Court of Appeal, where his GOP predecessor Gov. Jeb Bush had appointed them. Because of its clashes with Scott, a Florida Bar task force looked into the shrinking numbers of minorities and women who serve as members of nominating commissions and as judges.
Bar President Eugene Pettis pushed to send out an urgent survey to lawyers across the state and:
- nearly 77 percent said that partisan politics outweigh merit in selecting members for the nominating commissions;
- nearly two thirds of attorneys, who had applied to be JNC members, said politics rule;
- more than 82 percent of black lawyers and 55 percent of Hispanics said they lack a fair chance to help in the selection of judges.
Meanwhile, 78 percent serving as JNC members denied that politics gained them their responsibility.
The Florida Bar report stated: “Anyone who cares deeply about merit selection of judges or about diversifying Florida’s judiciary, and everyone who cares about both, should consider these data, and the difference of opinion about them, alarming.”
Today, Florida is one of the nation’s more diverse states—about 22 percent Hispanic and 16 percent black. However, its judiciary falls far short of those numbers. Among the state’s county, circuit and appeals court judges, fewer than 9 percent are Hispanic, and fewer than 7 percent are black.
You think that’s bad? The make up of the governor-appointed commissions are fewer than 10 percent Hispanic, and fewer than 4 percent black.
“The lack of diversity in the Florida courts system is perceived to contribute to bias and to diminish the concept of fairness,” according to a 2008 Florida Supreme Court panel.
Scott should thoughtfully consider his upcoming appointments of nominating-commission members. Can Florida citizens expect Scott to help make Florida’s courts look more like them? It would be the right thing to do. Plus, state law does require governors to ensure that nominating commissions reflect “racial, ethnic and gender diversity.”
Scott must ask himself a core question once posed by the late U.S. Supreme Court Justice Thurgood Marshall, a pillar of justice who spent a lifetime making sure all people were treated fairly. So, Gov. Scott, “what is the quality of your intent?”
Marcus J. Michles II is founding partner and principal attorney of the Michles & Booth law firm. Michles, who is one of Florida’s top trial attorneys, is a Republican. He is also the founder of Michles Family Freedom Foundation, which provides financial assistance to families of servicemen, law enforcement and first responders seriously injured in the line of duty.
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