Ex-Florida justices: Commission to blame for lack of Black justices on Supreme Court
Sadly, the Supreme Court of Florida has been without a single Black justice since the retirement of Justice Peggy Quince — almost two years ago. Even though there have been five vacancies on the Court since then, the Judicial Nominating Commission (JNC), the committee that vets judicial applicants and forwards names to the governor, nominated only one Black applicant, Renatha Francis, and that individual was not even constitutionally qualified to fill the position.
Yet, that constitutionally ineligible individual was who Gov. DeSantis tapped for the Court. In response to his action, Rep. Geraldine Thompson courageously and appropriately challenged the unconstitutional appointment. As the Supreme Court unanimously stated in its order last week, siding with Rep. Thompson against the governor, the JNC “itself made the decision to nominate a constitutionally ineligible candidate and it is responsible for the consequences of that decision.”
The governor’s appointment of Judge Francis this past May violated two “bright line” constitutional mandates, as the Florida Supreme Court recently declared: (1) that a Supreme Court appointee be a member of the Florida Bar for 10 years; and (2) that the governor make the appointment 60 days after the JNC sends its list of nominees.
Now, the Court remains without a Black justice. It did not have to be this way. As our former colleague, Justice Jorge Labarga, eloquently pointed out, the most recent vacancy was a “missed opportunity to enhance the diversity of this Court and to do so in a manner that adheres to the Florida Constitution.” He went on to emphasize that the “pool of applicants to the Supreme Court JNC included a generous slate of diverse applicants who were constitutionally eligible” to fill two vacancies.
“The list of applicants included six constitutionally eligible African American or Caribbean American applicants,” Labarga continued. “Each of the six applicants is an experienced attorney (or judge) who, at the time of application, had no fewer than 21 years of Florida Bar membership. In fact, the most experienced of the six was a member of the Florida Bar for 36 years at the time of application. Instead, the
Supreme Court JNC nominated the only African American or Caribbean American applicant who was constitutionally ineligible to fill either vacancy.”
In the 1970s, Florida became one of the first states to require that state appellate court judges and Supreme Court justices be appointed by a process known as merit selection. The idea behind the dramatic switch from a “good old boy” system was to minimize the role of political patronage in judicial appointments and ensure that a non-partisan committee would evaluate all applicants with one goal: sending the most qualified applicants to the governor based on the merits of their background, experience and reputation for fairness and excellence in the legal profession.
While the Legislature has since changed the JNC’s composition (the governor has had control over virtually all JNC appointments since 2000), the goal of providing the governor with the most qualified applicants remains unchanged.
So one has to ask what litmus test the nine JNC members used when they could not find a single qualified Black candidate to include on the list to fill the two most recent vacancies on the Court.
Based on the comments of JNC members and the nominees they selected, the primary qualification seems to now be that the applicant assert allegiance to “textualism,” promising to follow the the words as written, and incant the names of U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas. Of course, if textualism is the main qualification, the clear text of the Florida Constitution and the JNC’s own rules unequivocally showed that nominee was constitutionally unqualified for the position — as the Florida Supreme Court held. The JNC members should have known better!
And if diversity is an important goal for the judicial branch, perhaps that goal should start with the Supreme Court JNC, which does not have a single Black member. Proposals to fix the JNC’s shortcomings, such as the reform plan advocated by State Sen. Perry Thurston, merit consideration.
Until then, the people of this State, especially those who had hoped for at least one Black justice on the Florida Supreme
Court, have the JNC to blame for the ongoing and unacceptable absence of a Black justice on our state’s highest court.
Barbara J. Pariente was the second female justice to serve on the Florida Supreme Court, from 1997 to 2019. She served as chief justice from 2004 to 2006. Peggy A. Quince was the first African American female justice to serve on the Florida Supreme Court, from 1998 to 2019. She served as chief justice from 2008 to 2010.