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The art of chairing a judicial nominating commission Training for JNC chairs touches on how to avoid pitfalls and what the governor expects of the JNCs Mark D. Killian Managing Editor Gov. Jeb Bush is not interested in a judicial nominee’s strongly held personal, political, or religious beliefs — he only wants to make sure those he appoints to the bench can set those issues aside and rule according to the law. That’s the message Raquel Rodriguez, the governor’s general counsel, had for JNC commission chairs at a recent training program in Tampa, cosponsored by The Florida Bar and the Governor’s Office. Put together by the Bar’s Judicial Nominating Procedures Committee the curriculum included discussions on the judicial selection process and interviewing judicial candidates and training on the Sunshine Law, public records, and interviewing techniques. Rodriguez also emphasized the governor’s preference for slates of six nominees for each judicial vacancy. While the law provides that JNCs may send up three to six names for each vacancy, sending the maximum provides for more diverse appointments, Rodriguez said. “We depend on your management skills, your people skills, and your ability to identify good potential judicial nominees in order for the governor to fulfill his constitutional functions,” Rodriquez told the commissioners. “You are the key to this process; without you, it just does not work.” Improper Questions Ft. Lauderdale Judge Cynthia Imperato, vice chair of the JNPC, said when JNCs are criticized, it is often because candidates are asked inappropriate or offensive questions, such as asking a female candidate how she would balance motherhood with her judicial duties and quizzing candidates about their religious affiliations. “In the governor’s office we never ask anybody what their religion is or if they are active in their church,” Rodriguez said, adding, however, that sometimes candidates volunteer that information. “This is a question that I do ask because it is relevant to anybody who wants to be a judge, ‘Can you set aside your strongly held personal, political, or religious beliefs and rule according to the law?’” Rodriguez said. “That is what we care about. Are you going to follow the law? If you can’t follow the law, then you should not be a judge.” That question, she said, is not only appropriate “but almost a mandatory question.” A year ago when a member of the 17th Circuit JNC allegedly asked a woman candidate how she would balance motherhood with her judicial duties and other candidates if they were “God fearing,” Rodriguez said she followed up with a phone call to the commissioner in question and Gov. Bush went a step further and he sent a letter to every JNC reminding them again that they need to look for many different kinds of people for judgeships and he has no “litmus test.” Rodriguez said there are many ways to ask if somebody is going to be a hardworking judge without getting into if they have kids to care for. “You are a reflection of the governor,” Rodriguez said. “He appointed every one of you regardless of whether you were nominated through The Florida Bar or applied directly to the governor, so you reflect the governor. The governor has an interest in making sure that you reflect him well and you can’t reflect him well if there are problems with people leaving an interview feeling they were not treated fairly.” The flip side to those who object to questions about religious life was a lawyer who did not make it out of the JNC process who told Rodriguez he “got the distinct impression he need not apply again because of the fact that he was in a more formal sense involved in religious life.” “But again, the question is, ‘Can you follow the law?’” Rodriguez said. “I don’t think it is fair to create an impression that some people need not apply.” Six Nominees Rodriguez said the governor also has a strong preference for receiving six nominees for each judicial vacancy, saying it helps to promote diversity. Rodriguez said whenever the governor gets three or four nominees instead of six, she calls to find out why and inevitably is told the commission thought the others were not as qualified. “I do not believe it is the job of the commission to limit — nor should it be the goal of the commission to limit — the governor’s choices,” Rodriguez said. “It’s the job of the commission to send up the best qualified candidates and let the governor decide among those candidates. “I would encourage you to give the governor the benefit of the doubt and if there is somebody on the edge, let that person go through — let them be part of the experience,” Rodriguez said. “It is not an inconvenience to us and maybe they will learn something from it; maybe they will interview better the next time.” But Michael Band, a JNPC vice chair from Miami, said JNCs should only send the governor “legitimate candidates.” If you have six, terrific,” Band said. “But if four, five, and six really don’t match up with one, two, and three, I don’t know if the governor should be in a position to have that chance to mess up.” Rodriquez, however, said the governor has not appointed “an incompetent judge yet, so, I think, he can be trusted — and his staff can be trusted — to do the same kind of homework commissioners do. “Oftentime a lot of the people who get left off — let’s say four, five, and six — are younger lawyers, women, and minorities who often are on the younger lawyer side,” Rodriquez said. “More often than not, when the governor only gets three nominees — and no offense to the middle-aged white males who are here — it is three middle-aged white males. Why? Because they have been practicing for 35, 40 years.” Rodriquez said there are very few established women and minority lawyers who have been practicing that long. “Please don’t use the issue: these were absolutely the best three people and the others don’t match up simply because they may not have been around as long because inevitably what happens is. . . you are having a disparate impact on the women and minority lawyers out there who may not have been practicing as long,” Rodriquez said. Rodriquez said one of the hallmarks of the governor’s administration has been his diverse appointments to the bench. Bush has appointed 266 judges in the past seven years — more than a quarter of all judges in the state — and those appointments include 30 African Americans, 29 Hispanics, and 68 women, according to the Miami Herald. Rumors The commissioners also discussed how to handle rumors about judicial candidates. “How are you supposed to determine somebody’s future based on a rumor that is grossly unfair?” Rodriquez asked. “You would not do that on behalf of a client; you would not accept rumor and hearsay.” Rodriquez said JNCs must make every effort to run down the accuracy of rumors or other negative information about a candidate before passing that information on. “We spend a lot of time chasing down rumors that ultimately are not borne out,” Rodriquez said. “It is not fair to the applicants because the minute the governor’s office starts asking around about a rumor, people take it as fact.” Judge Imperato said it also is not fair to bring rumors about a candidate into JNC deliberations without giving the candidate an opportunity to refute the allegation. Judge Manuel Menendez, chair of the JNPC, also said that if a JNC is going to ask a candidate about a negative rumor, it would be appropriate to alert the candidate before the interview that the commission intends to address the rumor. “Perhaps the most insidious thing in the entire process is dealing with information that comes to you, a lot of times unsolicited, a lot of times without any indicia, that there is any fact involved,” Band said “We have taken the position on our commission that if we are going to consider it in deliberations we have to provide the applicant an opportunity to address the issue.” Committee member Carol Licko – the governor’s former general counsel – said the JNCs have been doing a very good job in demystifying the judicial selection process. “People now believe in the transparency and the impartiality and the objectivity of this process,” Licko said. “We have established something here that is very meaningful. People actually believe they have a shot at judicial candidacy if they work hard, do the right thing, and are professional.” The art of chairing a judicial nominating commission November 1, 2005 Managing Editor Regular News read more