Lawyers need to zap Bush's power trip

-By MARTIN DYCKMAN, Times Columnist
Published December 12, 2004

Dante once said that the hottest places in hell are reserved for those who in a period of moral crisis maintain their neutrality. 

- JOHN F. KENNEDY

TALLAHASSEE - If there actually are such special places for people who do nothing, they must also be the largest. It would take an entire convention hall, for example, to accommodate the 74,931-member Florida Bar.

Okay, that's not altogether fair. Many, if not most, of Florida's lawyers were disgusted, and still are, by what happened three years ago. But they did nothing collectively to stop it, and they have yet to undo it.

What happened is that the Bar's directorate and lobbyists played the three-monkey role, seeing, hearing and speaking no evil, when Gov. Jeb Bush was getting the Legislature to let him appoint all nine members of every judicial nominating commission.

The court-packing purpose that Bush had in mind was achieved yet again Thursday when he appointed Bradford Thomas, his public safety coordinator, to a vacancy on the 1st District Court of Appeal. He's the fourth such appointee whom Bush has chosen primarily for his conservative politics.

Thomas lacks the long experience as a trial judge or practitioner that most appointees bring to the appellate bench. Apart from five years as an assistant state attorney, he has spent most of his career making criminal justice policy on the staffs of the House of Representatives and the governor.

Among other things, he was Bush's point man on legislation intended to speed up executions by putting time limits on death row appeals. In a famously quoted e-mail, he advised unsuccessfully against allowing an exception for inmates who have newly discovered evidence of their innocence.

Thomas did, it is true, help pass the legislation to spare the mentally retarded from execution, and it is worth noting that Florida's courts of appeal do not handle death penalty cases.

However, the 1st District, the largest of Florida's five appeals courts, has a critical caseload of state agency appeals and constitutional law issues. 

When Thomas replaces retiring Judge Anne Booth, that court will be the least diverse of the five, with only one woman, one black man and thirteen white males.

Thomas is Bush's second transparently political appointee to that court. The first, two years ago, was Paul Hawkes, a political hatchet-man for the House speaker who voted predictably in dissenting to the court's ruling against Bush's school voucher law. Earlier, Bush appointed his general counsel, ex-Congressman Charles Canady, to the 2nd District, and last year he named Frank Shepherd, a conservative ideologue from the Pacific Legal Foundation, to the 3rd.

Of the four, only Canady would have gotten past the nominating commissions as they used to be constituted. The governor appointed three members of each. The Bar appointed another three. The first six chose the final three. This was designed so that no governor could stack a commission in order to get the nominees he wanted.

The Florida Bar prides itself on being a guardian of judicial independence. But it put up "absolutely zero" resistance to Bush's power trip, according to Sen. Walter G. "Skip" Campbell Jr., D-Fort Lauderdale, one of the few legislators who tried to oppose it. "They were not in the fight," said Campbell, an active Bar member himself.

Bush mollified the Bar by consenting to let it propose four members of each commission, which meant he gave the Bar nothing. Four is not a majority of nine, and Bush retained the power to keep asking for more names until he gets those he likes.

Kelly Overstreet Johnson, the Bar's new president, said Friday that the Bar is "very concerned" about perceptions that judicial selection is no longer nonpartisan and the courts are no longer independent. But when Bar members talk to legislators about putting things right, they're told it won't happen, so they're looking for other ways to make their points.

I know of only one. It's the same route Graham took after Bush trashed the Board of Regents. Graham organized an initiative campaign to create the university system's new Board of Governors. He persisted and won.

That's what the legal profession needs to do to atone for the sin of doing nothing three years ago. With its nearly 75,000 lawyers, many of them rich, an initiative campaign should not be so difficult. After all, even the doctors did it.

Martin Dyckman's e-mail address is dyckman@sptimes.com 

Source: St. Petersburg Times


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