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This is the first in an occasional series of columns and analyses about the Florida appellate court system, including the district courts of appeal and the Florida Supreme Court. The articles will examine political and institutional issues for the courts, practice concerns for appellate attorneys and judges, and appellate law trends. When Gov. Jeb Bush met this month with the people he recently named to the state’s judicial nominating commissions, he urged them to remember racial and gender diversity when sending him their recommendations for appointments to the bench. Since taking office in 1998, Bush has made a total of 128 judicial appointments, including both trial-level and appellate court judges, according to figures provided by the governor’s office. Nearly 54 percent overall have been minorities and women. But his record in particular on appointing women to the state’s district courts of appeal is dismal. Out of the 10 judges Bush has appointed to the DCAs, none are women. Two, however, are African-American men and one is a Hispanic man. The other seven are white males. Currently, only 17 of the 62 judges sitting on the state’s DCAs — or 27 percent — are women, African-American or Hispanic. Fourteen of those people were appointed by Bush’s predecessors — Govs. Reubin Askew, Bob Graham, Bob Martinez and Lawton Chiles. The problem, says Bush spokeswoman Elizabeth Hirst, lies not with the governor but with the JNCs. He complains that the panels aren’t giving him a diverse enough plate from which to select qualified candidates. That criticism is nothing new. In letters to JNC members two years ago, Bush grumbled that the lists he received from the JNCs lacked diversity. “I know there are more qualified female and minority lawyers in Florida who wish to serve as judges,” Bush wrote in a Dec. 9, 1999, letter, in which he urged them to give him a more diverse group of candidates. “He has expressed some definite frustration on the slates that have been brought forward to him by various JNCs,” says Hirst. “And that’s an issue he continues to find a challenge and is continuing to keep in the forefront.” NO MORE EXCUSES Bush has been able to put the blame on the JNCs because appellate court judges are appointed by the governor from a list of nominees selected by the 26 commissions — and he only had the power to appoint three out of the nine members on each panel. But that alibi has lost some of its potency. Earlier this year, the Legislature passed a law that gave Bush the power to appoint all nine members of each JNC. With that kind of control, the governor no longer can hide behind the JNC process, since he is solely responsible for the makeup of the panels. Now Bush can appoint JNC members who are willing to go the extra mile to encourage minorities and women to apply for judgeships, and who are willing to give minorities and women a little extra consideration in the nomination process. While it’s too early to tell if his newest selections to the nominating commissions will make any difference in the types of candidates sent to him, the governor currently has a chance to prove his commitment to diversity, says Susan Fox, president of the Florida Association for Women Lawyers and an appellate lawyer at Macfarlane Ferguson & McMullen in Tampa. Bush has a vacancy to fill on the 2nd District Court of Appeal, which encompasses a big chunk of Southwest Florida, including Hillsborough County. Currently, the 2nd DCA has only one female judge, Carolyn Fulmer, who was appointed by Gov. Chiles in 1994. There are two Hispanics on the bench, both of whom were appointed by Chiles, and one African-American, who was appointed by Bush. Of the six nominees who have been presented to Bush by the 2nd DCA nominating commission, three are women. “We are hoping that the governor picks one of them to at least start to correct the gender imbalance on that particular court,” Fox says. Closer to home, Bush has an opening to fill on the 4th DCA, which encompasses Broward and Palm Beach counties. It recently announced the retirement of John W. Dell, who has been on the bench since 1981. Candidates have until mid-September to submit their applications. Of all the DCAs, the 4th is one of the most diverse. It includes three female judges, one of whom is an African-American appointed by Chiles. LIFE EXPERIENCE MATTERS Seasoned appellate lawyers say that while judges primarily consider the law in making decisions, a judge’s life experiences and political disposition can play a role. For example, a judge who tends to see the law from a consumer’s perspective will analyze the facts and law differently than a judge who sees the law from a business perspective, says Ben Kuehne, immediate past chairman of the Florida Bar’s Appellate Practice Section and an appellate lawyer with Sale & Kuehne of Miami. And a lawyer’s awareness of each judge’s predisposition, he says, will have an impact on the way the lawyer presents his arguments. “Judges have known philosophies, and good lawyers present and articulate the arguments to be persuasive to those three judges on the [appellate] panel,” Kuehne says. Fox says the increase in the number of female judges and attorneys has contributed to better court handling of issues such as domestic violence. Because of this broader human perspective that shapes decision-making, some argue that the public’s confidence in the judicial system can be undermined when those selected to mete out justice do not reflect the diversity of the population. A problem in getting more women and minorities on the appellate bench, however, is that judges frequently move up from county and circuit court posts. Many minority and female attorneys, however, practice in fields such as government and family law which don’t lend themselves to this upward career path. Fox questions whether favoring “career judges” for appellate posts is a good idea. She contends that appellate lawyers in many cases make better appellate judges than lower court judges, who are not necessarily experienced in appellate issues and analysis. But Nancy Gregoire, president-elect of the Broward County Bar Association, says women attorneys frequently opt for professional career paths that allow them to raise children. “Frequently, those lifestyles, by their nature, foreclose certain advantages and possibilities,” she says. Such choices may give them less chance of making the appellate bench. “Those are the choices you make,” she says. Bush was handed more power to choose JNC members who stress diversity in judicial appointments. Now it’s up to him to make good on his promises.

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