Gov. Rick Scott remains indifferent about the importance of racial diversity among judges, but the Florida Bar is not. Its new task force report puts the governor on notice that a decline in the portion of judges who are African-American is unacceptable and that it's his responsibility to bring more diversity to the bench. Scott has a significant opportunity this month when he can make up to 78 appointments to commissions that vet judicial candidates. The governor, who previously has played partisan politics in choosing commission members, needs to set a new course and make clear to his appointees to the Judicial Nominating Commissions that a diverse judiciary is in the interest of all Floridians.
Outgoing Florida Bar president Eugene Pettis created the task force on enhancing judicial diversity after the state's portion of African-American judges dropped from 7 percent to 6.6 percent, the first decline in at least a quarter-century. As of March, just 4.3 percent of Scott's appointees have been African-American, compared with 9.9 percent by former Gov. Jeb Bush and 8.3 percent by former Gov. Charlie Crist. That decline should be unacceptable to members of both political parties.
Scott last year dismissed concerns from the black legislative caucus about the shrinking number of black judges, and at least some appointees to JNCs care little about submitting a diverse pool of nominees. A survey conducted for the task force found some JNC members hostile about educating lawyers on the judicial nominating process to broaden the applicant pool. "We don't want judges who can't even figure out how to apply on their own," wrote one. "Don't try to fix what ain't broke," wrote another. Such elitism has not gone unnoticed. In a survey of Bar members, more than three of every four said JNCs are built more on partisanship than merit.
This is a sharp retreat from a little over a decade ago when it was common for attorneys of either party to be appointed to the bench. The selection process has become exceedingly political, thanks to a change in state law that gives the governor sole discretion over who serves on the 26 JNCs (20 judicial circuits, five appellate districts and one for the Supreme Court). Both Bush and Crist enjoyed that power but never abused it. Eighteen times, Scott has rejected the Florida Bar's entire list of nominations for appointment to JNCs and opted for those who share his politics.
The legitimacy of the judicial system rests on its ability to reflect the society it serves. Florida's judiciary is 84 percent white in a state that is 57 percent white. The state is 23.2 percent Hispanic and 16.6 percent black, but the judiciary is only 8.8 percent Hispanic and 6.6 percent black.
The task force noted the advice of James Madison, written in 1788 as part of the Federalist Papers: "It is essential to (a republican) government that it be derived from the great body of society, not from … a favored class of it."
That message needs to be resent in Tallahassee.
Scott has a chance to demonstrate he has heard it.