In ap­point­ing jus­tices, this truth is no bet­ter than this fic­tion

Orlando Sentinel - - OPINION - 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, Ser­gio Bus­tos, Steve Bous­quet and Ed­i­tor-in-Chief Julie An­der­son.

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.

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