Crist uses shadow panels to vet judges

By Gary Fineout

Published on September 22, 2009

The Daily Business Review

Gov. Charlie Crist, whose push to put his stamp on Florida’s courts resulted in a scolding from the state’s highest court this summer, has quietly created shadow panels to help him vet those seeking judicial appointments across the state.

The Republican governor – an attorney himself – has turned to state legislators, a former president of the American Bar Association, a retired Florida Supreme Court justice and an NAACP attorney, among others, to interview potential judges already screened by one of the state’s official judicial nominating commissions.

Six attorneys nominated for a Miami-Dade vacancy were asked this month to show up at the office of Colson Hicks Eidson, where they went through another round of interviews with Crist’s general counsel and two other attorneys, including state Rep. Marcelo Llorente, R-Miami, an attorney with the Miami office of Bryant Miller Olive, a leading public bond counsel.

“It’s an incredible slate of very well-qualified candidates,” Llorente said. “It makes me proud not only as a member of the Legislature but as an attorney that we’re going to have a very qualified candidate. I’ve been very humbled to be part of that.”

This isn’t the first time Llorente, a member of a different branch of government, has interviewed attorneys seeking a spot on the Miami-Dade Circuit Court. He has gotten a chance to directly ask the finalists why they were seeking the job several times in the past three years. Llorente then got to “share his feedback” with Crist’s legal team on the slate of nominees.

These “post-panel interviews” aren’t limited to Miami-Dade County.

Public records obtained by the Daily Business Review for the past year show Crist’s general counsel’s office has had outside attorneys interview candidates seeking circuit judgeships in Hillsborough, Miami-Dade and Pinellas counties, as well as for the 1st District Court of Appeal in Tallahassee. The records don’t indicate how extensive the practice is.

Shadow panelists were usually given copies of the same information that had been given to the nominating commissions – the panels responsible under state law for screening applicants and giving the governor a list of finalists.

“In an effort to get to know and best assess the legal abilities of candidates, we sometimes engage respected and knowledgeable individuals from the community in the interview process,” said Crist spokeswoman Erin Isaac. “This has occurred at both the circuit and appellate levels.”

Politicized picks

Former House Speaker Marco Rubio, a Miami Republican challenging Crist in next year’s U.S. Senate primary, questioned why Crist was “circumventing” the nominating commissions “outside of the public light” with the shadow panels.

Rubio said it appeared Crist was inviting people to interview judges to win political support in the future.

“It appears the decision is being made to appease certain demographic groups, certain parts of the electorate,” Rubio said. “It’s so he can say: ‘I appointed judges like you. I appointed judges from your background.’ … It’s politicizing for electoral gain the process of appointing judges.”

What’s not known is what effect the private panelists have on Crist’s choices.

His advisers aren’t lockstep party politicos. Two legislators tapped by Crist’s office are Democrats: state Sen. Dan Gelber, D-Miami Beach, and state Rep. Darryl Rouson, D-St. Petersburg. Martha Barnett, a former president of the ABA and a Tallahassee partner with Holland & Knight, also took part in the interviews. One of the attorneys asked to sit on interviews for appellate judges this year was admonished by The Florida Bar in 2007.

Crist’s practice is a departure from that of his Republican predecessor, Jeb Bush, who came under fire for pushing through changes to give the governor’s office virtual control over judicial appointments. The governor also appoints JNC members, and Crist has filled many of those vacancies since taking office in 2007.

The concept of using private advisers to vet judicial appointees is nothing unusual. Presidents and governors take input on judicial appointments from all comers both formally and informally. But a parallel, private system appears to be something new.

Frank Jimenez, a last-minute finalist for a Florida Supreme Court opening filled in January by Palm Beach Circuit Judge Jorge Labarga, proposed a system of shadow panels to recruit ideologically compatible judicial candidates while working as Bush’s assistant general counsel.

Raquel “Rocky” Rodriguez, a McDermott Will & Emery partner in Miami who served as Bush’s general counsel in his second term, said that while Bush sometimes relied on outside attorneys in judicial selections, they were usually people who shared his judicial views. They included his former general counsel and close associates such as former Miami U.S. Attorney Roberto Martinez, a partner at Colson Hicks Eidson in Coral Gables. None of the attorneys was an elected official.

“They were people who knew the governor and what he was looking for,” said Rodriguez, citing such attributes as a strong legal background and a belief in the separation of powers.

Rodriguez said the Bush administration used attorneys with state agencies, including Crist’s office when he was attorney general, when more than 50 new judgeships were created by the Legislature. She also said Bush personally interviewed all nominees given to him for the Supreme Court and appellate courts.

Court test

Crist’s handling of judicial appointments already has spawned criticism and litigation. The governor last year balked at a list of judicial nominees offered for the 5th District Court of Appeal in Daytona Beach and said he wanted the nominating commission to give him a more diverse list of candidates. But the Florida Supreme Court in July ruled Crist had no choice but to appoint from the existing nominees.

Crist in the past year has appointed four of the seven justices now on the state’s high court. He has come under fire from conservative groups for one pick in particular. The selection of Justice James Perry was criticized by several groups, including the National Rifle Association and some anti-abortion, Christian conservative groups. They supported a different candidate.

Isaac said the governor did not rely on outside attorneys to interview any Supreme Court nominees. She also denied these non-JNC interviews were being used to winnow the list of official finalists.

“The interviews prior to final interviews with the governor are conducted as an information-gathering process for the governor to then decide whom he would like to interview,” Isaac said.

But several attorneys who participated in the private panels said they discussed the merits of candidates they interviewed.

“I think there was some consensus reached,” said Kelly Overstreet Johnson, a partner in the Tallahassee office of Broad and Cassel, and a former Florida Bar president who interviewed candidates for the 1st District Court of Appeal in Tallahassee. “I wouldn’t say we took votes. There were certain people who we all thought were really good.”

Former Supreme Court justice Major Harding said he has been asked twice by Crist’s office to interview judicial candidates, including for a vacancy on the 4th District Court of Appeal in West Palm Beach.

“We share our thoughts generally, but who the governor decides to interview is his decision,” said Harding, who was appointed to the Supreme Court by the late Gov. Lawton Chiles and is now a shareholder with Ausley & McMullen in Tallahassee.

‘Post-panel interviews’

Gelber, who is of counsel with Akerman Senterfitt in Miami, said he was approached by Crist’s previous general counsel, Paul Huck Jr. of Colson Hicks, to sit in on interviews for nominees to the Miami-Dade Circuit Court. Gelber also said a vote was never taken by those conducting “post-panel interviews,” as he called them.

“I think Paul was using it to get a group of opinions that might help the governor in the selection,” Gelber said. “We would talk about the folks who would come out. I knew most of them individually or by reputation.”

But Charles Hobbs, a Tallahassee attorney who works with the NAACP, ranked 1st DCA candidates for the governor in a letter to Crist’s general counsel, Rob Wheeler. In the Sept. 9 letter, Hobbs noted he ranked five of the nine nominees for two openings when “we last met” and now was recommending two candidates whom he thought the governor should choose.

“Realizing that the governor has a tough decision to make, I wanted to reiterate my personal feelings on the two candidates that I would believe would best serve on the court,” Hobbs wrote.

He recommended Lori Rowe and Karen Walker, saying Crist would have an opportunity to “select two well-qualified women” for the court.

“In addition to their considerable academic and career achievements, I believe that both women will eschew judicial activism in favor of giving great deference to the established statutory and case law that forms our system of jurisprudence,” Hobbs wrote.

Hobbs himself was admonished by the Bar. Records show he signed a consent order acknowledging he violated Bar rules on contingency fees and keeping clients advised in a case. Isaac said the governor’s office was not aware Hobbs had been admonished.

One of the two women recommended by Hobbs won a spot on the bench. Last week, Crist appointed Rowe, his deputy chief of staff, and T. Kent Wetherell III, an administrative judge and son of outgoing Florida State University president.

“I am confident she will bring to the bench the same integrity and commitment to excellence she has displayed throughout her career,” Crist said about Rowe.