Sun Sentinel Palm Beach Edition
A flawed system for choosing Florida justices
The select group that nominates Florida Supreme Court justices is back at work.
The panel is taking applications for the third time since Ron DeSantis became governor. As usual, the outcome is predictable. The finalists to succeed Justice Alan Lawson will tilt heavily to the right and the creed of the Federalist Society, whose textualist legal philosophy is more suited to the 19th century than the 21st.
All five DeSantis appointments to the court have been Federalists, like the governor himself. The nine nominating commissioners know what he wants, and they know he could replace all nine of them as their staggered terms expire. One member’s term already has, and three others, including that of new chairman Fred Karlinsky, expire June 30. The lawyer and insurance lobbyist from Broward County was appointed to the JNC by former Gov. Rick Scott.
The 26 nominating panels, one for each judicial jurisdiction, were never supposed to be political arms of the governor’s office. Florida needs to restore their independence, which the Legislature destroyed 21 years ago.
A lack of diversity
With the next pick, the questions include who will be the favored candidate, how the commission will arrange the deck chairs for him or her, and whether the court will remain without a Black justice for the first time in 40 years. That absence has been glaring since Justice Peggy Quince retired along with two other justices in 2019.
No Black lawyer or judge made the commission’s list of finalists for the three vacancies. Two more openings arose when two of DeSantis’ justices left quickly for the federal bench, and that’s when the machinations became flagrant.
The nominating commission spurned several more experienced Black applicants in favor of Renatha Francis, a circuit judge in Palm Beach County, a Jamaican-American and a rising star under Scott. The commission knew she hadn’t been a member of the Florida Bar for the full 10 years required by the Florida Constitution.
The clout Francis had with the nominating panel was intriguing, considering she had been a judge only three years. But for a time she had been a member of the law firm of Shutts & Bowen, the same firm as Dan Nordby, a Tallahassee attorney who chaired the Supreme Court JNC and is still a member after being reappointed by DeSantis.
The nominations were announced in January 2020. Francis wouldn’t be eligible until Sept. 24. DeSantis procrastinated until May, two months past a 60-day deadline that’s also in the Constitution, before appointing her and John Couriel, a Miami lawyer.
DeSantis’ tortured logic
DeSantis rationalized that Francis would be on maternity leave until Sept. 25, but the court itself didn’t buy it. In response to a lawsuit by Rep. Geraldine Thompson, D-Windermere, five of the six sitting justices (Couriel recused himself ) declared Francis “constitutionally ineligible” and told DeSantis to appoint someone else. They refused to let him wait the 13 days until Francis would mark 10 years in the
Bar. When he dawdled, they made it a direct order.
The court said it had been his duty to fill both vacancies by March 23. At nearly the last moment, he appointed Jamie Grosshans, a judge of the Fifth District Court of Appeal.
The Supreme Court’s decision to disqualify Francis was classic Federalist textualism, quite an irony for a governor who extols Federalist credentials.
“The constitution’s ten-year Bar membership requirement and sixty-day appointment deadline are bright-line textual mandates that impose rules rather than standards and prioritize certainty over discretion,” the court said. “To some, enforcing rules like these might seem needlessly formalistic when the result is to preclude the appointment of an otherwise qualified candidate. But ‘formalism,’ as Justice Scalia observed, ‘is what makes a government a government of laws and not of men.’ ”
Some saw irony in the fact that Thompson, Francis’ nemesis, is Black, but Thompson was right. Qualifications matter. The Constitution matters.
In contrast to how DeSantis slow-walked the last appointment, his office gave the nominating panel less than a month to suggest finalists to replace Justice Alan Lawson, who retires Aug. 1. The panel is asking DeSantis for more time.
Demanding six names
DeSantis told the commission to send him six finalists, the maximum by law, rather than a minimum of three, which is questionable in two respects. A textualist reading of the Constitution suggests that the choice of how many finalists is the commission’s call, not the governor’s, and the greater the number, the more likely that some will be less qualified than others.
An independent commission would make that choice for itself, but this one surely will obey the governor.
When former Gov. Reubin Askew established the nominating process known as merit selection in 1971, he intended to insulate commissions from political pressure. Each of them had three members appointed by the governor. The Florida Bar appointed three, and those six appointed three non-lawyers.
When Askew, a liberal on many issues, was asked years later why he appointed a very conservative justice, James Alderman, he said: “I didn’t appoint him for his ideology. I appointed him for his integrity.”
The resulting judicial independence increasingly irked Republicans. By 2001, in control of both houses with Jeb Bush in the governor’s office, they changed the rules to enable governors to appoint all nine members of each commission.
In a sop to the Bar, they provided that four members must be from lists recommended by the Bar, but the governor can reject those lists without explanation and demand new ones. Scott did that often, as has DeSantis. It has become harder for the Bar to recruit lawyers willing to risk rejection.
It bears remembering that judicial independence is synonymous with judicial integrity. One cannot exist without the other.
The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.