Third District Court of Appeal at 2001 SW 117th Ave. in Miami. Photo: J. Albert Diaz/ALM

Following two days' worth of interviews, the Third District Court of Appeal Judicial Nominating Commission is poised to announce the names it's submitting to Gov. Rick Scott to fill vacancies on the appellate court at any moment.

However, amid a heated election cycle and a renewed focus on how Florida judges reach the bench, some are speaking out about the mechanism for judicial nominations and appointments.

Judge Leslie B. Rothenberg.

The public was notified Sept. 26 that Chief Judge Leslie Rothenberg and Judge Richard Suarez would be resigning from their posts prior to the end of their terms in 2019. Consequently, the Third District Court of Appeal Judicial Nominating Commission announced it would be convening to review submissions and applications to fill the newly created vacancies.

With an application deadline of Oct. 15, aspiring appellate judges only had 19 days to assemble their resumes and prepare for interviews taking place only one week later.

According to Miami attorneys Marcos D. Jimenez and Lilly Ann Sanchez, this expedited process is nothing unusual. In addition to sitting on the Third District Court of Appeal Judicial Nominating Commission, both attorneys have also chaired the commission within the last decade.

Judge Richard J. Suarez.

“When I was on the JNC we did it really quickly. It was usually pass the names to the governor's office right after the interviews,” Jimenez told the Daily Business Review. “It might not be incredibly right after, but really close.”

“The fact that the names are coming out today from interviews over the past two days is status quo,” Sanchez said. “That is how we do it because the interviews are the last piece of the puzzle and the process.”

Sanchez noted that the quick turnaround time between interviews and nominations was for the sake of keeping conversations with prospective candidates “very fresh in the minds of the commissioners.”

“What I will tell you is unusual about these two positions is that there is generally a longer period of time from the time the applications are submitted to the time the interviews are conducted, especially for appellate positions,” she added. “What was a little abbreviated here was the time frame to give the public notice for those that applied and giving the commissioner to get in touch with references and thoroughly vet all of the applicants.”

However, others perceive Rothenberg and Suarez's resignations, as well as the ensuing nomination process, as part of a larger debate over the ability of the Florida governor to have an outsized say in judicial appointments.

Jimenez noted that “it's really the governor's office that takes the time to interview the candidates and select the person or persons for the position.”

 

'It's Suspect'

The governor's ability to shape the bench has been highlighted by outgoing Scott's conflict with the Florida Supreme Court over his ability to select the Judicial Nominating Commission's nominations to replace three outgoing state supreme court justices.

Philip Padovano, a former circuit and appellate judge who served on the First District Court of Appeal, told the Daily Business Review that these vacancies might be part of a larger trend to keep Florida courts conservative. Padovano noted that Rothenberg and Suarez's resignations caught his eye since they will be resigning shortly before their terms ended.

“It's suspect to say the least,” Padovano, who is now a private practitioner, said. “I don't want to say that it's widespread, but every year there are a handful of judges who want to rig the system to make sure that their successor is appointed either because they prefer the appointment system to the election system, or they want to make sure the incumbent governor gets to pick. I don't think that's a decision that should be in the hands of outgoing judges.”

Padovano said he has litigated several cases where trial judges have resigned shortly before the end of their terms, thereby circumventing merit retention and qualifying periods. He refers to this as “a manipulation that's designed to convert an election into an appointment.”

Padovano also asserted this trend has correlated with an increased politicization of the Judicial Nomination Commission, who provides the list of judges from which the governor selects appointments. The Florida Supreme Court has ruled that barring a tainted selection process, the governor must pick from the commission's nominations.

“When it started it was perfectly neutral and perfectly fair,” Padovano said of the JNC's origins in the 1970s. He noted the JNC's original composition — three people chosen by the Florida Bar, three people picked by the governor and a subsequent three selected by the commission itself — changed under the tenure of former Gov. Jeb Bush.

“The Legislature changed it,” according to Padovano. “Now the governor gets six picks, the Florida Bar gets three picks that they recommend to the governor, but the governor can refuse any of those picks as many times as he wants.”

“So the governor gets to pick all nine people on the nominating commission,” Padovano added. “And the history has shown that Gov. Scott has rejected more than 100 names.”

Padovano said he believes “we should change the way the nominating commissions are constituted,” or alternatively, “give up this charade, and let the governor pick who we wants.”

Even in light of the criticism by Padovano and others, many maintain their full faith in the system for state judicial appointments as they stand.

“I'm proud of my time and service on the JNC, and having been on the JNC I know how seriously the commissioners take their position,” Sanchez said. “And I'm fully confident — always — that all applicants are properly vetted and we have very good judges on the bench.”

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