Politi­ciza­tion of Florida’s courts is a cri­sis

South Florida Sun-Sentinel (Sunday) - - Opinion - By Sun Sen­tinel Ed­i­to­rial Board

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 Robin­son 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.

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