By Noreen Marcus, FloridaBulldog.org
Wounded but defiant, Gov. Ron DeSantis dangled the consolation prize of a federal judgeship for Renatha Francis at a zero-hour press conference where he named someone else to the Florida Supreme Court.
Republican politics of the moment suggests Francis will secure that prize and possibly spend decades on the federal bench, along with a growing legion of conservative colleagues who, like her, will enjoy lifetime tenure.
Earlier this month the Florida Supreme Court forced the governor to drop Francis and pick another justice because she wasn’t eligible for promotion when he appointed her. After DeSantis ignored his deadline —noon on Sept. 14–the court set another one five hours later.
Finally, right at 5 p.m. and under threat of a contempt citation, he appeared with Fifth District Court of Appeal Judge Jamie Grosshans, 41, soon to be Justice Grosshans, at his side.
Surprisingly, Renatha Francis was also there. DeSantis called her “one of the best attorneys in Florida” and “an inspiration to a lot of people.”
The governor said he’d already told President Trump about Francis, a Palm Beach County Circuit Court judge. And Trump was “receptive” to the idea of nominating her to a seat on the federal trial court in South Florida, DeSantis said.
“As one door closes, another door opens,” he said.
Francis’s new career goal
As if it’s a done deal, Francis publicly promised Trump she’ll “faithfully adhere to the text of the Constitution.” She said she’d do her best to remain as fair as she’s been in state court.
Renatha Francis, 43, would have been the first Jamaican-American woman of color to serve on the Florida Supreme Court. “I really symbolize, I think, the American dream,” she said at the press conference.
Now, based on her background and the Trump administration’s track record for placing favorite lawyers on federal courts, Francis can reasonably expect to reach her new career goal, knowledgeable observers said.
“She ticks all the boxes: she’s young, a Federalist Society member, an immigrant person of color, so it’s very understandable why DeSantis reached out to her,” said Robert Jarvis, a professor at Shepard Broad College of Law, Nova Southeastern University.
Jarvis compared Renatha Francis’s nomination to U.S. Supreme Court Justice Clarence Thomas’s. “No one believed he was the only qualified person or the most qualified person to fill that seat, but he was one of the few persons of color who was a Republican and who ticked those boxes, and Francis is another,” Jarvis said.
McConnell’s judge-making machine
Unlike the governor of Florida, who hardly ever has to defend his judicial choices, the president must win U.S. Senate approval of his federal court picks.
But that hasn’t been a problem. During Trump’s term some Judiciary Committee hearings have been contentious, but Senate Majority Leader Mitch McConnell perfected the routine of pushing through confirmations like moving a machete through butter.
One of Trump’s signature accomplishments for his base is filling federal courts with social conservatives. McConnell, who vows to “leave no vacancy behind,” is largely to thank for that, commentators ranging from Fox News to MSNBC agree.
The Kentucky Republican hit a milestone in June when the Senate filled the last opening on the federal appeals courts. Only the U.S. Supreme Court occupies a higher rung of the judicial ladder.
Altogether, 210 Trump-nominated judges have been confirmed for federal trial and appellate courts, including two justices of the U.S. Supreme Court, ABC News reported Sept. 16.
The death Friday of Justice Ruth Bader Ginsburg, the most prominent liberal on the Supreme Court, has already launched a frenzied push by Trump and Senate Republicans for a conservative replacement.
Senior senators—not governors—traditionally have some input in choosing federal judges in their states. Lately they’ve played a less active role, which Sen. Marco Rubio, the senior Republican from Florida, may consider a blessing.
Marco Rubio’s Braman problem
One of Rubio’s biggest financial backers is auto magnate Norman Braman. Braman’s nephew and in-house counsel, former federal prosecutor David Leibowitz, has been expected to replace U.S. District Court Judge Federico Moreno in Miami.
In April, The Miami Herald reported that Rubio was backing Leibowitz to succeed Moreno, who took semi-retired status and opened up a spot for another full-time judge. But with the Nov. 3 presidential election just six weeks away, Francis’s best hope is quick confirmation for the Moreno seat.
What’s a loyal Republican to do? Rubio’s office did not respond to a Florida Bulldog request for comment about Renatha Francis.
Not everyone agrees it’s even possible to approve her before the inauguration.
Paul Gordon of the liberal nonprofit People for the American Way said this in a statement: “There is not time this year to nominate and adequately vet a replacement for Judge Moreno. That is a good thing, because Floridians have a chance to make sure that the person filling this vacancy is selected by Joe Biden, not Donald Trump.”
Do ABA ratings still matter?
Today the conservative Federalist Society dominates the judge-vetting process. Not long ago the American Bar Association (ABA) could doom a nominee with a bad review.
The influence of the ABA, which has more than 356,000 members, has waned considerably under Trump. Of the 10 federal judicial nominees it’s labeled “not qualified” since January 2017, seven were approved, one withdrew and one nomination expired, the ABA media office said.
The 10th “not qualified” nomination is pending. Kathryn “Kat” Mizelle, 33, an associate, or, junior lawyer at the Jones Day law firm, is up for the Tampa-based Middle District federal trial court.
A former clerk to Justice Thomas, Mizelle has practiced law for only eight years. That’s the main reason the ABA’s Standing Committee on the Federal Judiciary gave for her low rating.
While there’s no experience threshold for federal judges, the ABA prefers at least 12 years, according to a Sept. 8 letter to the Senate Judiciary Committee. Mizelle hasn’t tried any cases as a lead lawyer or a co-counsel; she has the equivalent of five years in trial courts.
An ABA ‘not qualified’ nominee
Mizelle “has a very keen intellect, a strong work ethic and an impressive resume,” the letter says. “She presents as a delightful person and she has many friends who support her nomination. Her integrity and demeanor are not in question.
“These attributes, however, simply do not compensate for the short time she has actually practiced law and her lack of meaningful trial experience,” the letter says.
Given the ABA’s take on Mizelle, it’s hard to see how Francis qualifies for a federal judgeship under the same standard. In 10 years she’s never tried a case as a lawyer.
For six of those years, Renatha Francis was a First District Court of Appeal staff attorney, researching and writing about points of law to assist the judges.
During most of Francis’s time as a trial judge, 16 months in Miami-Dade Circuit Court, she determined bond amounts and eligibility. She also spent nine months in Miami-Dade County Court fielding a large volume of minor civil matters, and a few months in Palm Beach County’s family court.
‘You’ve got to do a big check’
Mizelle has the advantage of some federal court experience, but Francis has none. That matters because federal law and procedure are significantly different from state law and procedure.
There’s also a difference in scale, with bigger and more complex cases going to federal courts–nationwide class actions, for instance.
Federal trial judges rule on U.S. laws and treaties, disputes between states and habeas corpus challenges to illegal detention. Intricate jurisdictional questions fill their dockets. No civil case worth less than $75,000 is allowed to cross the federal courthouse transom.
Tallahassee lawyer Donald Hinkle, who served on state and federal judicial screening commissions for 20 years, said that thorough, time-consuming FBI background checks are crucial for federal judges because of the sensitive cases they handle.
“They wiretap terrorists and mobsters, do highly confidential national security things. You’ve got to do a big check on a federal district judge, for god’s sake,” he said. “I would hope, but who knows what they do?”