Florida Supreme Court to Hear Judicial Nominating Case
A case to be heard by the Florida Supreme Court next week will pit the governor's office against the court system in a case that tackles not only whether the Supreme Court can force the governor to make a judicial appointment, but also the issue of racial diversity on the courts.
Last September, Fifth District Court of Appeal Judge Robert Pleus informed Gov. Charlie Crist of his intention to retire come January, triggering the judicial nominating process, where a commission sends a list of names to the governor's office so he can appoint one to the bench.
But when the judicial nominating commission sent a list of potential replacements to Crist, the governor said, in essence, ‘No thanks, try again’ sparking a shooting match between the commission and governor's office. The governor asked the JNC to reconvene and submit a new list, accusing commissioners of leaving off qualified minority applicants.
Twenty-six people had applied for the opening and the Fifth District Judicial Nominating Commission had forwarded six names to the governor. Four men, two women, all white. Crist said in a letter to Fifth District JNC chair James H. Fallace that at least three African-Americans, including Ninth Circuit Chief Judge Belvin Perry, were among the list of applicants for the position and wanted to know why not one of them had made the list..
The JNC wrote in response that members of the commission had concerns about whether the governor's request to reconvene and submit a new list was constitutional and decided to stick with its original list. The process is in place, the commission noted, so that a governor can’t simply ask for new names until he gets one he likes.
So the seat has remained empty, with the governor refusing to make an appointment.
Then, 5th DCA Judge William Palmer wrote Crist in February asking that the issue be quickly resolved because the vacancy was “adversely impacting the court, affecting the assignment of cases, the scheduling of oral argument, the timely disposition of cases, and the utilization of staff personnel.” And there was still no appointment.
In response to the empty seat, Pleus filed a lawsuit against the governor in March asking the court to force him to make an appointment. Crist's lawyers responded in a legal brief that Pleus had no authority to force him into a choice.
Lawyer Sandy D'Alemberte, who is representing Pleus, said the Constitution requires that the governor make the appointments from the JNC list.
“What happens if a governor can disregard the nominees suggested by the judicial nominating commission?” D'Alemberte asked. “It seems to me that if that happens that we no longer have a judicial nominating process.”
Crist told reporters earlier this week that he believes he has been open about his beliefs regarding diversity on the courts.
“Continued diversity is very important to me and I think that we have made that clear,” he said.
The National Association for the Advancement of Colored People has also gotten in on the action, filing a friend of the court brief that criticizes the nominating process for being a closed-door process that can enable prejudice.
NAACP attorney Charles Hobbs wrote in the brief that many fear the judicial selection process "is rife with bias on behalf of the well-connected and has a disparate impact on minorities."
The seven judges will hear the case at about 9:20 a.m. Wednesday morning.