The New Politics of Judicial Selection in Florida: Merit Selection Redefined*

Article excerpt

This research examines the impact of legislative changes to Florida's merit selection process designed to provide the governor with more influence over the judicial selection process. We ask whether the modifications had their intended effect. Gubernatorial appointments from 1999 through 2003 to the state's trial courts in the metropolitan areas and to the intermediate court of appeals were analyzed. We find significant differences in appointments before and after the law's change with respect to political party, and more subtle trends in the individuals' applications with respect to religion and the reporting of religious activity and movement conservatism.

"To the victor belong the spoils," and when the victor controls two of the three branches of state government, the third branch, especially if it is the judiciary of the State of Florida, would be wise to take note. Republicans, who wrested control of electoral politics from Democrats in several states over the past decade, have found that winning the governors' mansions and securing majorities in state legislatures did not guarantee complete implementation of their political agenda. In many states, Republicans have continued to be frustrated by their predecessors' more liberal ideology, which exists in the sitting judges and the entrenched judicial selection processes that put them there.

This has been especially true in Florida since 1998, when Republicans gained control of the state legislature and executive branch. The litigation during the 2000 presidential election and the Terri Schiavo case in 2005 brought national attention to the antagonistic relationship between Florida's courts and its elected policymakers, but less visible conflicts have repeatedly occurred when Republican legislative initiatives have been blocked or delayed by the courts. Among the areas in which court decisions have frustrated Republican policy are educational reforms, school-voucher programs, public funding of faith-based initiatives, abortion access, and gay rights.

In an effort to minimize these conflicts and to complete the partisan transformation of governance in Florida, Republicans there have sought to revise a number of institutions that affect the state's judiciary (Salokar and Shaw, 2002). In 2001 the state legislature passed, and the governor approved, a significant revision to the merit selection process for judges. This change allows the governor to exercise more control over the membership of the judicial nominating commissions (JNCs) and reduces the influence of the state bar association. We examine here the effects of these statutory changes. Using data on judicial appointments in major urban areas, we determine whether changes in the selection process resulted in discernible differences in the appointments made by Governor Jeb Bush from 1999 through 2003. We evaluate several variables including gender, race, and ethnicity; political party; movement conservatism; and religion and religiosity.

Our research asks a question that has been asked many times before: Does the method of judicial selection matter in terms of who serves on our courts? Previous studies of judicial selection in the states have focused on who is appointed or elected to the bench under each of the major methods of selection (e.g., Flango and Ducat, 1979; Slotnick, 1988; Click and Emmert, 1987; Graham, 1990a, b). Comparative studies of selection methods usually rest on data collected from several states, each using a different method (e.g., Click and Emmert, 1987; Hall, 2001; Bratton and Spill, 2002). The 2001 changes to Florida's merit selection process provide an opportunity to evaluate the impact of modifications to a state's judicial selection system. By focusing on a single state, we can eliminate variation in variables like political ideology and legal culture, which differ from state to state. Moreover, this one-state case study controls for the appointing official in a way that previous studies have not, as Governor Bush made both the pre- and post-change appointments examined here. …