By Noreen Marcus, FloridaBulldog.org
Today the Florida Supreme Court is as white as it was on May 26. On that day, Gov. Ron DeSantis presented Renatha Francis as the first justice from the black Jamaican-American community.
After a legal and political fight that almost went nuclear, the newest justice is, instead, a white woman, Jamie Grosshans, formerly a judge on the Fifth District Court of Appeal.
The fault for this fiasco lies mostly with the governor-controlled panel that screens potential justices: the Florida Supreme Court Judicial Nominating Commission (JNC).
“I blame them 100 percent. I blame the governor 100 percent also,” said state Sen. Perry Thurston (D-Fort Lauderdale), who called for the entire JNC to resign over the Francis mess. “They were carrying the governor’s water.”
Former Justices Barbara Pariente and Peggy Quince didn’t go that far. But they berated the JNC in an unusually blunt guest column the Orlando Sentinel published Sept. 17, three days after DeSantis identified Grosshans as his second choice.
All-White Supreme Court
“The people of this State, especially those who had hoped for at least one Black justice on the Florida Supreme Court, have the JNC to blame for the ongoing and unacceptable absence of a Black justice on our state’s highest court,” Pariente and Quince, who retired in January 2018, said in their column.
The departure of the African-American Quince created the opening that Francis, a Palm Beach Circuit Court judge, was supposed to fill.
However, Francis’s limited experience disqualified her from serving on the court. The JNC sending the governor her name — not any of six eligible black candidates who applied — seemed to either rig the system for failure or depend on no significant pushback.
In fact, there was pushback in the form of a court challenge. And the governor’s celebrated effort to racially diversify the court failed miserably.
“The JNC made the decision to nominate a constitutionally ineligible candidate and it is responsible for the consequences of that decision,” Pariente and Quince wrote.
JNC’s defense of Francis nomination
“They acted as a rubber stamp, not as an agency with independent evaluation skills,” Thurston said. “I don’t think anyone was fooled that DeSantis didn’t know. He was pretty much orchestrating what they were doing.”
Thurston supports legislation that would restore some Florida Bar input to the JNC member selection process. Ever since Republican Gov. Jeb Bush had the rules changed in 2000, the governor chooses all nine JNC members, either directly or indirectly through a veto. So the JNC is full of DeSantis’s hand-picked allies.
Usually the commission doesn’t have to explain its actions. Daniel Nordby, JNC chairman during the dispute, didn’t acknowledge an emailed request from Florida Bulldog for a response to criticism of the Francis appointment.
But when Rep. Geraldine Thompson (D-Orlando) challenged the appointment in a petition to the Supreme Court, DeSantis and the JNC were obliged to formally defend themselves.
The governor’s explanation followed a curious logical path. His lawyers wrote in court papers that Francis, who was on maternity leave, couldn’t join the court until her leave ended, anyway; and the date of her return, Sept. 24, happened to be her 10-year anniversary as a lawyer, when she became eligible to serve on the high court.
Governor finally blinks
The synchronicity defense didn’t work out for DeSantis. The governor “has not complied with the constitution’s clear commands,” the justices ruled Sept. 11. They ordered him to replace Francis the next business day.
After ignoring his noon, Sept. 14 deadline, DeSantis complied hours later, just before the court could have found him in contempt and ignited a constitutional crisis.
He called a press conference where he introduced Grosshans. He said President Donald Trump was “receptive” to the idea of nominating Francis for a federal judgeship. And Francis, 43, thanked DeSantis and Trump for her expected lifetime appointment.
In court papers Nordby argued that the JNC did nothing wrong because an applicant isn’t officially eligible to join the court until taking office–in this case on Sept. 24, Francis’s scheduled swearing-in date. He cited a 2001 Florida Supreme Court decision, Miller v. Mendez, as the “leading authority” for this proposition.
Rep. Thompson’s lawyers, William Ponall and Lisabeth Fryer, responded that the Mendez case was about an elected judge, not an appointed one who must meet special standards. Also, it was about a residency rule, not a minimum-mandatory experience level.
In short, the salient facts of the Mendez and Francis cases do not match up. Mendez is irrelevant, according to Thompson’s lawyers.
The Supreme Court didn’t decide who was right because the justices never ruled on the JNC’s defense. Early in the litigation they excused the commission based on a technicality.
‘Missed’ chance to avoid all-white court
Thompson wanted the court to make the JNC give DeSantis a new shortlist of nominees. In line with her push for diversity, Thompson, an African-American, urged the JNC to “strongly consider” putting all six eligible black applicants on its list of nominees.
But Thompson didn’t file her court challenge until six months after the JNC sent DeSantis the names of favorite applicants on Jan. 23.
She waited too long, Justice Carlos Muniz wrote for the court. Therefore, he argued, it wouldn’t be “proper … for us to entertain a challenge to the JNC’s list of nominees.”
In a separate opinion, Justice Jorge Labarga lamented “the missed opportunity to enhance the diversity of this Court.” He said both the JNC and DeSantis went too far when they nominated and appointed Francis before she was eligible.
DeSantis and the Federalists
To understand why DeSantis and the JNC tried so hard to put Francis on the high court, it helps to know their connections. They’re all affiliated to some degree with the Federalist Society, a decades-old, ultra-conservative legal influencer that’s gained traction in recent Republican administrations.
DeSantis, once a member of the group’s Harvard Law School chapter, is known to seek out Federalist Society advice about choosing and promoting socially conservative judges. Grosshans, his eventual choice for the judgeship he meant to give Francis, also belongs to the Federalist Society.
Judge Barbara Lagoa, a DeSantis appointee to the Supreme Court before her rapid rise to the federal appeals bench, is a Federalist Society treasure. She was a leading contender to replace the late Justice Ruth Bader Ginsburg on the U.S. Supreme Court before President Trump chose yet another Federalist Society member, Seventh Circuit Appeals Court Judge Amy Coney Barrett, on Saturday.
Former JNC chair Nordby, a Federalist Society leader in Tallahassee, is a partner at Shutts & Bowen. Francis briefly practiced insurance defense law at his firm’s Miami office before Gov. Rick Scott put her on the Miami-Dade County Court trial bench. Nordby and Francis probably knew each other from Federalist Society events and/or her seven years as a staffer at the First District Court of Appeal in Tallahassee.
The Federalist Society website lists two of the nine JNC members, Jesse Panuccio and Harout Samra, as contributors. Panuccio is a former general counsel for Gov. Rick Scott and a partner in the Fort Lauderdale office of Boies Schiller. Samra is an associate in the Miami-Dade office of DLA Piper. They speak at group events that extol the judicial philosophy of “textualism,” which honors the fixed letter of the law as opposed to its shifting spirit.
A litmus test
In their newspaper column, Pariente and Quince accused the JNC of using textualism as a litmus test before recommending Francis over every eligible black candidate.
“The primary qualification seems to now be that the applicant asserts allegiance to ‘textualism,’ promising to follow the words as written, and incant the names of U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas,” Pariente and Quince wrote.
“Of course, if textualism is the main qualification, the clear text of the Florida Constitution and the JNC’s own rules unequivocally showed that the nominee [Francis] was constitutionally unqualified for the position — as the Florida Supreme Court held,” they continued.
“The JNC members should have known better!” Pariente and Quince scolded.
JNC overlooked better options
Minority voices cheered when DeSantis announced the Francis nomination. Eugene Pettis, the Florida Bar’s first African-American president, said she was “uniquely qualified” to serve on the Supreme Court.
Here are the six eligible black applicants the JNC passed over, including their present or most recent positions and total legal experience. None has any apparent ties to the Federalist Society:
- Judge Fabienne Fahnestock, Broward Circuit Court, 21 years
- Belinda Noah, private practice, 36 years
- Judge Cymonie Rowe, Palm Beach Circuit Court, 21 years
- Elijah Smiley, Bay County (Panama City) chief judge until 2019, 34 years
- Judge William Thomas, Miami-Dade Circuit Court, 24 years
- Daryl Trawick, Miami-Dade Circuit Court judge, 35 years