Politicization of Florida’s courts is a crisis

The Florida Supreme Court will shortly be without an African-American justice for the first time since 1982. That’s if Gov.-elect Ron DeSantis doesn’t ask for more names from the nominating commission that has recommended 11 people to replace three justices who must retire in January because they’re over 70 years old.

The lack of diversity is unacceptable, especially as it comes on the heels of the racially tinged campaign in which DeSantis narrowly defeated Andrew Gillum, the black mayor of Tallahassee. That outcome, coupled with the mandatory retirement of Supreme Court Justice Peggy Quince, means there will be no African-American in any statewide office come January.

Citizens have a right to expect that the people who make and administer their laws will, to a reasonable extent, resemble them. It gives them confidence in the impartiality of justice. But that confidence is being shaken in Tallahassee.

The person most responsible for the lack of diversity is outgoing Gov. Rick Scott, who appointed all nine members of the Supreme Court Judicial Nominating Commission. Four are registered lobbyists, including Chairman Jason Unger of Tallahassee, with 33 clients; and Fred Karlinsky of Fort Lauderdale, with 83.

Under Republican governors since 2001, and particularly under Scott, many of Florida’s 26 judicial nominating commissions have come to resemble Republican patronage committees. In other words, to be considered, you have to be a Republican.

The Supreme Court commission could have nominated as many as 18 people — six each for the positions being vacated by Quince and fellow justices Barbara Pariente and C. Fred Lewis. The Constitution makes the commission’s deliberations secret, so there is no explanation of why it settled on those 11 nominees.

The commission did recommend two who identify as Hispanic; another who declines to say, but whose name suggests Hispanic origin; and an applicant who marked the category “Asian-Pacific Islander.” There are two women, including one of the Hispanic nominees. Unless DeSantis chooses one of them, the court could be left without a female justice for the first time in 35 years. Regardless of who’s appointed, it will still have a Hispanic justice, Jorge Labarga.

Another dubious circumstance is that eight of the 11 nominees reported membership in the Federalist Society, the conservative organization that appears to have a monopoly on the Trump administration’s appointments to the federal judiciary. Among the 48 applicants who didn’t make the cut, another 18 also declared Federalist membership. The word must be out that it matters. But it shouldn’t.

Judicial applicants must list all their memberships, but one of the nominees, Carlos Genaro Muñiz, 49, took pains to emphasize a certain enthusiasm. “I have been a member of the Federalist Society since law school,” he wrote.

Highlighting the highly political cast of the commission’s recommendations, Muñiz is presently general counsel to Betsy DeVos, the U.S. secretary of education. As such, he’s responsible, at least in part, for controversial proposed rule changes on how schools and colleges handle sexual harassment complaints.

Much attention has gone to a proposed rule change that would expand the rights of the accused, including cross-examination of the complainants. Another with potentially broader consequences would severely limit the definition of harassment under Title IX to that which is “so severe, pervasive and objectively offensive that it effectively denies a person equal access” to education. According to some criticism, not even a rape would require investigation under this standard. Of note: Muñiz represented Florida State University in a lawsuit, eventually settled, by a student who claimed football star Jameis Winston had raped her.

Earlier in his career, Muñiz worked for Republican Gov. Jeb Bush. He also has been policy director for the Republican Party of Florida, served in the U.S. Justice Department’s Civil Rights Division under Presidents George H. W. Bush and Bill Clinton and was an attorney in the Gray Robinson law firm, where Unger is a partner

No candidate with such a highly political résume belongs on the Supreme Court. None would have made it during the early years of the nominating commissions, which Gov. Reubin Askew meant to be independent when he created them in 1972. Then, governors could name only three members of each nine-member panel, with the Florida Bar and the commissions themselves each choosing three more. But in 1991, the Legislature gave the governor the power to name all nine to staggered terms. A new governor will always inherit his predecessor’s preferences.

So Scott is responsible for the next three Supreme Court appointments even though it’s DeSantis who will make them. They are certain to extinguish any liberal attitudes on the court. LaBarga has sometimes voted with Quince, Pariente and Lewis, but he’s been on the other side in several recent split decisions marked by increasingly bitter dissents.

One of them, announced Nov. 23, allowed Scott’s nominating commission to make the recommendations before the vacancies actually exist. In dissent, Lewis properly called out the majority for “an unfounded result that ignores the plain and explicit language of the Florida Constitution.” Pariente and Quince dissented also.

The majority also rebuffed a request from the League of Women Voters and others to require the nominating commission to reopen applications for the sake of more diversity. The court said the commission could do that on its own. But it didn’t.

Here’s a rundown on the other nominees.

John Daniel Couriel. Harvard law graduate. Federalist member. Hispanic. The only nominee who is in private practice. Latin American litigation specialist. Former assistant U.S. attorney, twice a Republican nominee for the Florida Legislature.

Jonathan D. Gerber, 50, chief judge, Fourth District Court of Appeal. University of Florida law school. Federalist. On court since 1998.

Jamie Rutland Grosshans, 39, judge of Fifth District Court of Appeal appointed by Scott only 14 months ago. Federalist. University of Mississippi law school.

Jeffrey T. Kuntz, 37, judge, Fourth District Court of Appeal. Federalist member. Suffolk University Law School. Appointed by Scott two years ago. Former Gray Rob- inson lawyer.

Bruce Kyle, 49, circuit court judge at Ft. Myers. Former state representative and assistant state attorney. St. Thomas law school.

Barbara Lagoa, 50, judge, Third District Court of Appeal since 2006. Federalist member. Hispanic. Columbia University Law School. Former assistant U.S. attorney. Robert J. Luck, 39, judge, Third District Court of Appeal since March 2017. University of Florida law school.

Timothy D. Osterhaus, 47, judge, First District Court of Appeal since Scott appointment in 2013. Federalist member. Former solicitor general for Attorney General Pam Bondi.

Samuel J. Salario Jr., 47, judge, Second District Court of Appeal since 2015. Federalist member. University of Florida law school.

Anuraag “Raag” Singhal, 54, circuit judge in Broward County since Scott appointment in 2011. Federalist member.

Wake Forest University Law School. Former assistant state attorney as well as criminal defense attorney in private practice. Identified as Asian-Pacific Islander.

Because of a quirk in the Constitution, one of the new justices must be a resident of the Third Appellate District. That’s Miami-Dade County, and only Curiel, Lagoa and Luck would qualify. That residency requirement, the product of old sectional jealousy, needs to be repealed — and the nominating commissions should be made independent again.

The Constitution Revision Commission that met this year was, unsurprisingly, disinterested in doing that. So long as the Legislature remains Republican, it won’t care, either.

But the deepening politicization of Florida’s courts is a crisis. It imperils their independence and their impartiality. Florida’s legal profession needs to mobilize against this. The public desperately needs its leading lawyers to do that.

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, David Lyons and Editor-in-Chief Julie Anderson.