In appointing justices, this truth is no better than this fiction
A state commission dominated by members of the American Civil Liberties Union will soon nominate at least six people for two vacancies on the Florida Supreme Court. Of the 32 judicial applicants, 23 belong to the ACLU, a liberal organization. Stop. That is not true.
But this is:
A state commission dominated by members of the Federalist Society for Law and Justice will soon nominate at least six people for two vacancies on the Florida Supreme Court. Of the 32 judicial applicants, 23 belong to the Federalist Society, a conservative organization.
If the fiction alarmed you, so should the truth.
No group that represents a particular ideology deserves a near monopoly on appointments to the bench.
It is increasingly apparent that the Federalists have a monopoly in Florida thanks to Gov. Ron DeSantis and his predecessor, Rick Scott, as well as on federal appointments by President Donald Trump.
DeSantis, a Federalist himself, promised the society’s state convention that his appointees would push the Florida Supreme Court to the right. The three justices he appointed last year had Federalist connections. Trump plucked two of them for a federal appeals court. Will their vacancies be filled by two more Federalists?
The Federalist Society is prominently associated with such conservative and libertarian causes as reducing government regulation, making the courts more friendly to corporations and “originalism,” the theory that the Constitution should be interpreted according to the circumstances of 1787.
Leonard Leo, the society’s executive vice president, is one of the most powerful conservatives in the country and an influential adviser to Trump on federal appointments. According to a Washington Post Magazine article entitled “Conquerors of the Courts,” he worked with a network of nonprofits that raised more than $250 million to influence judicial confirmations. Much of the money could not be traced to sources.
In May, a former federal magistrate, James Donohue, wrote in the Post that Federalist participation appears to violate the ethics rules for federal judges because it “increasingly appears to be a political operation in all but name.”
Daniel Nordby, a Federalist who chairs Florida’s Supreme Court Nominating Commission, asserted in an e-mail to the Sun Sentinel that Federalist membership is not a de facto requirement for nomination to the court.
“The only qualifications…,” he said, “are those specified in the Florida Constitution.”
Speaking for himself, “I am looking for potential Florida Supreme Court justices who are individuals of great personal integrity and intellectual ability, mindful of their critically important but limited role under the Constitution, hard-working with a steady judicial temperament and a demonstrated commitment to the faithful and impartial interpretation and application of the law.”
Liberal judges can be just as capable of that as conservatives are.
Of the 32 applicants for the two Supreme Court vacancies, 25 are sitting judges of the circuit courts or district courts of appeal, and 19 of those are Federalists.
The Constitution requires one of the seats to be set aside for residents of the Third Appellate District (Miami-Dade and Monroe Counties). Only eight of the applicants qualify and five of them are Federalists.
The nominating commission drew justified criticism last year for nominating no black applicants, which left the Supreme Court without an African-American justice for the first time since 1983. Trump promoted the only female justice to the federal bench.
The commission has a responsibility to promote diversity and no excuse for not doing so this time. Seven applicants are black, including five Federalists. Thirteen applicants are women, including 12 Federalists.
Of the five sitting judge applicants from Broward and Palm Beach counties, Palm Beach Circuit Judge Howard Coates Jr., is the only non-Federalist. The others are Circuit Judges Fabienne Fahnestock and Carol-Lisa Phillips in Broward, and Cymonie Rowe and Renatha Francis in Palm Beach.
Two names to watch are those of Eliot Pedrosa of Miami, one of the few nonjudge applicants, and Circuit Judge William Thomas of Miami-Dade. Both are eligible for the Third District set-aside.
Thomas is black and openly gay. He is not a Federalist. His nomination by President Barack Obama to the Federal District Court for South Florida was torpedoed in 2013 when Republican Sen. Marco Rubio withdrew his support over what he said were Thomas’ ruling in two criminal cases.
Pedrosa’s background is the most political. He’s a recent Trump appointee as an executive director of the InterAmerican Development Bank. His parents were Cuban refugees. He is a Harvard law graduate who practiced with the influential firm Greenberg Traurig, where he represented corporate clients including the R.J. Reynolds tobacco company in a wrongful death case.
Applicants are asked to cite their most significant cases. Among his, Pedrosa listed the successful appeal of a school principal for the right to pray over the loudspeaker prior to a football game between two private Christian schools; Bush v. Gore, which decided the 2000 presidential election; and the highly charged case in which the Clinton administration prevailed on returning Elian Gonzalez to his father in Cuba. Pedrosa argued unsuccessfully for keeping the Cuban child with relatives in the United States. His mother had drowned trying to escape from Cuba; six-year-old Elian survived on a raft.
Pedrosa looks like a shoo-in to make the cut. It would be pleasantly surprising if Thomas does.
DeSantis won the 2018 governor’s race by only 32,463 votes out of more than 4.1 million cast. That is no mandate for politicizing the courts and is certainly not the sort of example he would wish a liberal successor to follow.