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Gov. Jeb Bush seeks judicial candidates who are humble.

When filling judicial openings, Gov. Jeb Bush seeks those who possess "the virtue of humility," according to Charles Canady, the governor's general counsel.

"The humble judge decides cases in light of the background presumption that the judicial role is fundamentally not that of a legislator or an administrator," Canady told judicial nominating commission members attending the First Annual JNC Commissioner College January 17 in Miami.

"The humble judge does not seek to be an innovator devising the rules that govern our society. Indeed, the humble judge understands that it is the political institutions of government that have the duty to define what constitutes progress, policy, and to determine the means by which to obtain such progress."

Canady, a former four-term U.S. congressman from Lakeland who joined the governor's staff in January, also said there must be no doubt as to the soundness of the judicial candidates' character, particularly in regard to the qualities of honesty and integrity.

"The candidates must possess both a record of professional excellence and wide-ranging knowledge of established legal doctrine and procedure," said Canady, who received his law degree from Yale and whose father worked for 18 years as a top aide to Gov. Lawton Chiles.

"The candidate must also demonstrate a willingness and ability to continue to learn on the job."

The governor also looks for diversity in his appointments and believes in selecting judges who reflect the people they will serve, Canady said, adding that the manner to obtain diversity is as important as the goal itself.

"Quotas, preferences and dual standards are just as illegitimate in the selection of judges as they are in school admissions and government contracting," Canady said.

"Gov. Bush has rejected these discriminatory measures. But, in their place, Gov. Bush has asked the judicial nominating commissions to help him achieve diversity by aggressively identifying and including qualified minority candidates by ensuring such candidates that they will receive full and fair consideration."

Canady said Bush seeks humility in the judges he appoints in two senses of the word:

"The first has to do with the judge's conduct and treatment of others," he said. "First and foremost, Gov. Bush sees himself as a public servant and thinks government in its essence is an enterprise devoted to service. So the governor believes that judges, too, should see themselves as public servants. Ideally, this understanding of judge as public servant should be manifested in carrying out every judicial function."

Canady said it is not passiveness or meekness that Gov. Bush seeks in judges. Rather, it is a conviction that judicial power is to be exercised with respect, expression and dignity that is incumbent to judicial office.

The second sense of judicial humility has to do with the judge's substantive approach to the law and knowing the proper role of judges in our system of government.

"This is the conviction that keeps a person from giving into the ultimate temptation facing any judge, and that is the temptation to decide cases not on what the law actually dictates, but what that judge would like the law to be," Canady said, adding the temptation transcends politics and labels such as judicial activism or judicial restraint.

"A humble judge is not necessarily a Democrat or a Republican or necessarily passive or active. Rather, the humble judge is the one who seeks in good faith to discern the law that the people either directly, or through their political representatives, make."

Perhaps paradoxically, Canady said, humility does not demand judges reject the notion that there are right answers in the law, but rather humility requires the opposite.

"Too often, judges will use an inserted ambiguity or skepticism as to whether a law's meaning is knowable to simply throw up their hands and impose the result that best suits the judge's own political or moral philosophy," Canady said. "Humility requires judges to be persistent in searching for the right answer to the questions at hand, not their preference.

Canady said it is precisely the difficulty of deciding close cases that leads Gov. Bush to seek candidates who will bring to the task of judging an attitude of humility.

"Finally, the humble judge recognizes the courts are not institutionally equipped to be social scientists or philosophers or even bureaucrats," Canady said.

"Those who feel an irresistible impulse to control institutions, to govern, to impose their will on others, surely lack the temperament Gov. Bush seeks in his judicial appointments."

However, Canady said, Gov. Bush does not favor inert judiciary.

"Indeed, the governor fully recognizes that a vigorous, independent judiciary is essential to both the preservation of constitutional government and the protection of individual rights," he said.

Canady said Bush personally reviews all the applications for candidates sent to him to fill judicial vacancies and every nominee is interviewed in Tallahassee. Canady said he and his legal staff interview all the nominees for the trial bench. Bush participates in interviews for nominees for the Supreme Court, the district courts of appeal and the position of chief judge of compensation claims. Canady said the governor also seeks guidance from the community by contacting the candidates' references and speaking with others who can help him evaluate the qualifications of the candidates.
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Author:Killian, Mark D.
Publication:Florida Bar News
Date:Feb 1, 2001
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