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On black judges, a slow slide backward

Before Gov. Rick Scott took office, Florida was on a 25-year march toward a racially and ethnically inclusive judiciary. Thanks in no small measure to the vision of Florida's chief justices and the commitment of its former governors, the state's judicial bench had been growing — oh so slowly, yet surely — more reflective of the diversity of Floridians who rely upon it for equal justice and fair resolution.

Scott's appointments have signaled an alarming retreat in that historic press of progress. To date, he has appointed fewer African-American judges than did any of his recent predecessors — 4.3 percent of his judge selections have been African-American, compared to 9.9 percent for Jeb Bush and 8.3 percent for Charlie Crist — and nearly bleached the membership of the judicial nominating commissions, or JNCs, that forward slates of judge candidates to him for selection. By law, the governor chooses all nine members of the state's 26 JNCs. Today, with Scott at the helm, fewer African-Americans sit on those JNCs than they did 25 years ago.

That reality is shameful in a state whose population is as richly and increasingly textured as ours and where African-Americans make up more than 16 percent of the citizenry.

Scott's retreat threatens to unravel decades of work toward racial equity and turn the clock back to an era none of us should want to revisit. In 1989 — when merely 4 percent of Florida's judges were African-American, and four out of five of our appellate courts had no black or Hispanic judges at all — then-Chief Justice Raymond Ehrlich showed foresight in creating the Florida Supreme Court's Racial and Ethnic Bias Study Commission to, among other things, examine the underrepresentation of minorities among judges and court personnel.

The commission, one of the earliest such panels in the nation, documented the dearth of minorities not only on the bench but on the state's JNCs — half of which, the commission found, had no black or Hispanic members, and none had an African-American attorney helping to decide the makeup of Florida's judgeships. After listening to hundreds of judges, attorneys and law school deans, and studying the issue for a year, the commission made recommendations aimed at correcting the stark imbalances.

Those revelations and recommendations set in motion a series of unprecedented actions by the Governor's Office, Legislature, JNCs, the Florida Bar and others that soon started bearing fruit. By 2000, the percentage of African-American judges had grown by more than 50 percent, and that of Hispanic judges had more than tripled.

By 2011, when Scott took office, the numbers were up even further, with African-Americans representing 7 percent and Hispanics nearly 8 percent of all Florida state court judges. Though miles yet from the finish line, Florida's march toward the fairer administration of justice had produced measurable gains in transforming its judicial bench into a truer mirror of society. To this day, such improvements continue — with Scott's help — with regard to Hispanic judges, who now represent nearly 9 percent of Florida's state court bench.

That hard-earned progress is retracting, however, with respect to African-American judges and JNC members. Today, African-Americans account for 6.6 percent of all state court judges (not counting compensation claims judges in the executive branch), and the once-promising trend line is plotting in reverse.

Even when Scott has been offered a slate that includes two African-American attorneys, he has failed to appoint a black judge — apparently unmoved that his choice not to do so would revert that court to its former, all-white status. More glaring yet is the falling diversity on the JNCs, where black membership has dropped under Scott by nearly half and now stands at less than 4 percent, a level Florida Bar president Eugene Pettis rightly calls "below dismal."

Why does all this matter? The racial commission and other panels — including the Florida Supreme Court's Standing Committee on Fairness and Diversity, expanded in 2004 by then-Chief Justice Barbara Pariente — have long since settled the question. Diversity brings a broader range of human experience to the bench, enhancing both the quality and fairness of judicial decisionmaking. The inclusiveness of the judicial system, perhaps more than any other factor, also influences how citizens view and respond to the justice meted out by the courts.

Scott is not the only impediment, and he is correct that his range of choice is sometimes limited by the lists of judge finalists he gets from the JNCs. Indeed, the declining diversity in JNC membership has fueled a vicious cycle: As the racial commission found in 1990, fewer minorities apply for judicial vacancies to all-white JNCs than to JNCs with minority members, which in turn narrows the lists of nominees from which the governor must make his selections.

That's why it is so important not only that current JNCs reach out to minority attorneys so as to build diversity in the slates they forward, but that diversity within those JNCs be boosted significantly and immediately. To his credit, Bar president Pettis has been leading on this issue.

He has extended the deadline for applications in the hope of attracting more minorities for the four out of nine seats on each JNC for which the Bar nominates candidates. He has also created a task force to look more deeply into the growing underrepresentation. That task force bodes well for a number of reasons — prime among them that it is chaired by Fort Lauderdale attorney Frank Scruggs. Scruggs is intimately familiar with these issues through his leadership of both the racial commission in 1989 and the subsequent Ten-Year Retrospect study, convened in 2000 to assess improvements made and work yet to be done.

Ultimately, however, the buck stops with Scott. He determines the makeup of the JNCs, and he alone sets the leadership tone and the priorities. As Floridians mourn last week's passing of former Gov. Reubin Askew — a man of enormous moral courage, who launched the JNC system and appointed Florida's first black Supreme Court justice — Scott should draw from the dedication to racial fairness shown by the men in office before him. Former Gov. Jeb Bush, a fellow Republican, was so serious in his commitment to judicial diversity that he harshly chastised the JNCs for sending him too few African-American names, urging them to eliminate the various barriers affecting the lists given to him.

Bush was successful in solidifying the advancements of his own predecessor, Lawton Chiles, whose commitment to racial and ethnic diversity produced one of the finest moments in the state's gubernatorial history.

That historic moment came in August 1991 in the Supreme Court chamber of Florida's Old Capitol. With more than 100 attorneys and citizens proudly looking on, Chiles stood to announce his 26 appointments to the JNCs — an unprecedented 23 of whome were African-American attorneys. Within a year, Chiles had followed up yet again by selecting minorities, including many Hispanics, to 19 of his next 27 JNC picks. With those groundbreaking appointments, Chiles boosted African-American membership on the JNCs to more than 20 percent from the unacceptable 5.6 percent uncovered by the racial commission.

"Fairness begins in the courtroom, and these appointments will help to stop the cycle of discrimination that has forced too many minorities to the back of the carriage of justice," Chiles told the crowd. "To the many hundreds of blacks who have made it through law school and are now sharpening their legal skills in courtrooms all over this state, these appointments mean that they, too, can find their way to the bench."

Then-Chief Justice Leander Shaw, himself a motivating force behind the racial commission's formation, took to the lectern to put Chiles' announcement into context.

"Today you have witnessed a timely, honest and statesmanlike response from the governor, an action that in years to come will make the Florida bench more representative of the rich ethnic makeup of our state," Shaw proclaimed.

Whether Shaw's optimistic assessment remains true in the decades ahead depends now on Scott. He has a prime opportunity to pick up the baton and make his own mark on history, given that the terms of dozens of JNC members expire at the end of June. By working in concert with the new Bar task force, he can ensure greater racial diversity in his coming JNC replacements and propel Florida forward in the continuing march toward a more inclusive, and worthy, judicial bench.

Deborah Hardin Wagner was a member of the St. Petersburg Times editorial board from 1996 to 2006 and directed the Florida Supreme Court's Racial and Ethnic Bias Study Commission from 1989 to 1991. She also participated in the Court's Ten-Year Retrospect Meeting in 2000. She wrote this exclusively for the Tampa Bay Times.

On black judges, a slow slide backward 03/13/14 [Last modified: Friday, March 14, 2014 1:28pm]
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