Florida Supreme Court faces defining test

The appointment of a woman who would be the Florida Supreme Court’s first Caribbean-born Black justice is at stake in a lawsuit challenging her eligibility. The case is also about Gov. Ron DeSantis’ unabashed campaign to make the court rigidly rightwing.

The court itself is an issue, too. Is its new majority sincerely wedded to the conservative mantra of “textualism” — that the Florida Constitution’s words are all that matter, not their intent? If so, they must reject the appointment of Renatha Francis. Otherwise, the court’s new-found philosophy is nothing more than a convenient card to play when seeking cover for harsh decisions, like its ruling on Amendment 4.

The case also illustrates how a nomination process that was once intended to keep politics at a distance has been corrupted to let governors mold the courts to their political ideologies.

In the odd way the law works, the judge herself isn’t a defendant in the case, although it’s her career at issue.

The defendants are Gov. Ron DeSantis and Daniel Nordby, chair of the Supreme Court Judicial Nominating Commission. They’re being sued by Rep. Geraldine Thompson, D-Orlando, in an open break with other members of the state Legislature’s Black Caucus, which lobbied for Francis.

Francis’ advocates also include Broward County Mayor Dale Holness and Eugene Pettis of Fort Lauderdale, who was the Florida Bar’s first Black president in 2013.

Barely three years ago, Francis was in private practice, having been a staff lawyer at the First District Court of Appeal for most of the seven years since she passed the exam and was admitted to the Florida Bar.

In 2017, then-Gov. Rick Scott put her on

what turned out to be a fast track to the top. He made her a county judge in Miami, and a circuit judge less than a year later. On succeeding Scott, DeSantis moved her to the Circuit Court in Palm Beach County, where she heard cases in the family and probate division for only a few months before applying to fill a Supreme Court vacancy.

She has the thinnest résumé of any appointee since the nominating process began 48 years ago.

To be eligible for the Supreme Court, the state Constitution requires someone to have been a member of the Bar for 10 years. Francis won’t mark that anniversary until Sept. 24.

By its own rules, the nominating commission should have shelved her application.

The Constitution also requires governors to fill judicial vacancies within 60 days of receiving nominations. DeSantis took twice that long.

He’s telling the court he was preoccupied with the coronavirus pandemic. However, he had the nominations on his desk for more than a month before he issued his first emergency health order on March 1.

As for Francis’s eligibility, the governor maintains that the 10-year rule applies only to when she actually takes her oath of office and he signs her commission, which won’t happen before Sept. 24. But the precedent he cites had to do with a judge’s residence at the time of qualifying in an election — a much different issue. That was also long before the court’s present commitment to the strict regime of textualism.

The court is presently without a Black justice for the first time since 1982, and also without a woman. Francis, 42, who was born in Jamaica, would fill those roles.

However, the governor also plainly had her ideology in mind, as evidenced by his own words and a strong endorsement from John Stemberger, president of the socially conservative Florida Family Policy Council.

Stemberger praised her expressed commitment to the textualism doctrine practiced by the late U.S. Supreme Court Justice Antonin Scalia and preached by the arch-conservative Federalist Society for Law and Justice.

Inconveniently for the Florida court, however, Thompson’s suit invokes textualism against Francis’s appointment.

Textualism calls for reading the Constitution and laws as they are written without trying to deduce what the drafters might have intended and what the words meant at the time.

There were six more experienced Black applicants, including five judges. None made the nominating commission’s final list of nine. The chosen nominees all claimed Federalist membership

The language of the Florida Constitution seems plain on its face.

“No person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida.”

Thompson’s lawsuit reminds the court that it extolled textualism in the Amendment 4 voting rights case in January.

The majority quoted Scalia to rationalize a harsh application of the 2018 voting rights initiative. In an advisory opinion to DeSantis, the justices said the phrase “all terms of sentence” means that ex-felons must pay all fines, court costs and restitution before they can be allowed to vote. (A federal district judge’s contrary opinion is on appeal.)

Justice Jorge Labarga concurred only in part, objecting to the majority’s “unbending application of the ‘supremacy-of-text principle’ to Florida law, to the exclusion of available extrinsic evidence that would assist the court in construing constitutional and statutory provisions.”

He has been dissenting often since mandatory retirement forced three liberal colleagues off the bench last year, leaving their successors to be chosen by a new governor who promised the Federalist Society’s Florida convention that he would push the court to the right. All five of his appointees so far (two of whom left for the federal bench) have had Federalist connections.

The six Black applicants who didn’t make the commission’s final cut included Circuit Judges Fabienne Fahnestock of Broward and Cymonie Rowe of West Palm Beach. With two vacancies at hand, the commission could have recommended up to nine, possibly including three more Black applicants.

But it chose only Federalists.

It’s possible, perhaps likely, that the court will let the process run past Sept. 24 and then reject Thompson’s case as moot, or dismiss it on technical grounds. Either out would cast doubt on its commitment to textualism.

It would also mean that governors could allow vacancies to remain open for years, saving them for political reasons that the 60-day mandate is supposed to preclude.

The seat earmarked for Francis has been vacant since Justice Robert Luck left for the federal bench last December. September will mark ten months. No vacancy has ever lasted that long.

Justice John D. Couriel, appointed at the same time as Francis, has recused himself from the case.

Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Dan Sweeney, Steve Bousquet and Editor-in-Chief Julie Anderson.