While Lady Justice is supposed to be blind, that doesn’t mean she can’t see what’s happening to her institution.
Democracy requires that the institutions of government reflect the citizens of the nation. In a diverse nation, those who serve in these institutions must also be diverse. Given the duties of the judiciary, it is of particular importance that our legal institutions be open and representative of all. It is the branch of government ultimately charged with safeguarding constitutional rights, particularly protecting the rights of vulnerable and disadvantaged minorities against encroachment by the majority. How can the public have confidence and trust in such an institution if it is segregated—if the communities it is supposed to protect are excluded from its ranks?
Last week, Florida’s Supreme Court JNC (Judicial Nominating Commission) ignored these proven principles and submitted a slate of 11 candidates to Gov.-Elect Ron DeSantis that would take our state’s high court back decades; not a single African-American was nominated and only two women. While I know a couple of the JNC members and they are good people, it’s not a coincidence that the complexion of the slate mirrors the makeup of the JNC members.
In January 2014, I as president of the Florida Bar, met with Gov. Rick Scott and challenged him to recognize that Florida’s Judiciary was reverting back to levels of homogeneity that hadn’t been seen in decades; some circuits had no diversity on the bench for the first time in 30 years. The issue was so important until I appointed a President’s Special Task Force to study enhancement of diversity in the Judiciary and on the JNCs. The members of the task force were bipartisan and reflective of who we are as a state, full of our rich diversity.
One of the key findings that the task force uncovered was in order to achieve the diversity we claim that we desire, we must make sure the judicial nomination process is also diverse. History has shown that when there is no diversity on the JNCs, that is usually a predictor of the level of diversity you can expect on the slate of nominees. It’s not rocket science.Diversity expands our reach and appreciation of talent that’s beyond our inner circle. The results are undeniable.
My request was not just a personal belief but it’s the law! Under Florida Statute 43.291 the governor shall seek to ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution, of the population within the territorial jurisdiction of the court for which nominations will be considered.
Given this law, how can we have a Supreme Court JNC with no African-Americans on the commission? Should we really be surprised in the composition of this slate given the defiance of Gov. Scott to assemble a JNC that “reflects the racial, ethnic and gender diversity” of our state? There is a reason why our state legislature enacted Section 43.291 as a mandate using the word “shall.” It is not debatable that the integrity and results of the judicial selection process are enhanced by the real inclusion at the decision making table; not those who think they can speak for other groups whose shoes they’ve never walked in.
Regrettably, despite our self-fulfilling egos that claim we support the richness of diversity, heaven will not ignore our silence in the face of this injustice. While these appointments may be the spoils of winning an election, their ramifications will reverberate through the veins of society for decades to come. If a picture speaks a thousand words, then the ghost of Florida’s darkest past is being awakened.
Real diversity can’t be achieved in the face of deliberate exclusion or insensitivity in the selection process. I used the words “deliberate or insensitivity“ because it has to be one or the other. You have to work really hard to avoid diversity during the appointment process of JNC members or judicial appointments in Florida since it is one of the most diverse states in our country; and I note not just diversity in numbers but diversity of excellence.
We see through the eyes of our life’s journey. Our natural instincts are to view favorably those that we are most familiar with. Our views are inescapably shaped by that journey. Even more reason for true inclusion at every level. However, unless we can escape our perceived rarified air of self consumption then we will never achieve the richness of diversity—one humanity reflective of the whole.
I challenge DeSantis to resist politics as usual and demand a slate of candidates that are more representative of our state. Despite what legal challenges that may arise there is a foundational principle which he must stand— “government of the people, by the people, for the people.”
Eugene K. Pettis is a partner with Haliczer, Pettis & Schwamm in Fort Lauderdale and a former president of the Florida Bar.