Gov. Ron DeSantis has already remade the Florida Supreme Court in his own, conservative Republican, image.
The question now is whether that court will allow him to break political precedent regarding a judge he’d like to add to the seven-member court.
That would be Renatha Francis, who’s been serving as a state trial judge in Palm Beach County. She’s an immigrant from Jamaica who would become the only Black person serving on the court, which has been exclusively white and Latino since DeSantis took office in January 2019.
The Florida Legislative Black Caucus has endorsed Francis for the seat, but state House member Geraldine Thompson, an Orange County Democrat, is challenging the appointment.
Thompson has asked the Supreme Court justices to decide whether Francis is qualified to join them on Florida’s highest court, or whether they should order DeSantis to pick another candidate.
Now the governor’s lawyers have delivered their answers to Thompson’s charges, asserting potentially sweeping authority for Florida’s chief executive in the process.
One: Candidates need not be qualified when he selects them to serve on the court, as long as they will be by the time they take their oaths of office. Even if that happens months or years later.
Two: Within that framework, the governor is not bound by the deadline, established in the Florida Constitution, for filling vacancies on appellate benches, including the Supreme Court.
The immediate issue is whether it matters that Francis won’t have been a member of the Florida Bar for 10 years until Sept 24.
Bending the rules?
Under Article V of the Florida Constitution, that’s a prerequisite for joining the court. But also at stake is whether the governor can at least appear to bend the rules to place his candidate on the court.
In a pleading filed Monday, the governor argued that the Supreme Court’s own precedents hold that “eligibility requirements need not be satisfied until the time of taking office. This favors eligibility of Judge Francis when she assumes office on or about Sept. 24, 2020.”
DeSantis’ team argues that Francis, who recently gave birth to her second child, is essentially taking a maternity leave that’s fully in the spirit of the Supreme Court’s personnel policies, which presumes new parents can take at least three months off.
The governor does acknowledge “temporal” limitations on his power of appointment but the brief adds that “the Florida Constitution is silent as to when an appellate court appointee’s term of office begins.”
The argument gets complicated, but here is where the governor’s team lands: An appointee can take as long as “three years, one month, and twenty-eight days” to qualify to fill the seat. Francis will pass her 10-year Bar anniversary within that period, the brief argues. “Therefore, her appointment is valid.”
The governor’s brief also disputes Thompson’s argument that DeSantis waited too long to appoint Francis and John Couriel to fill vacancies on the seven-member court after a judicial nominating commission included them among a list of candidates on Jan. 23. He was supposed to act within 60 days but announced the appointments on May 26.
DeSantis was open about his intention to ignore the deadline even before it fell. He argued he was too busy fighting COVID-19 to decide about judges.
“His delay in making the appointments was not an attempt to sidestep his legal duty to make the appointments, nor was it done in protest of the list provided to him. Gov. DeSantis took longer than 60 days because he was focused on protecting the public in responding to the COVID-19 emergency,” his brief argues.
Ideology and the Federalist Society
Of course, there is an element of ideology in this fight. DeSantis, himself a member of the Federalist Society for Law and Public Policy Studies, a conservative-to-libertarian organization that promotes so-called “textualist” or “originalist” judicial philosophies, tends to favor fellow members like Francis and Couriel for judgeships. Couriel took the bench on June 1.
In practice, Federalist judges tend to oppose economic regulation, affirmative action, and marriage equality and support for states’ rights and an expansive reading of presidential power.
In a news conference in late July, Thompson complained DeSantis’ Federalist predilictions amounted to a litmus test that threatened judicial independence.
In her Supreme Court brief, filed on July 13, she seeks a rare writ of quo warranto, legal Latin for “by what authority” — essentially, challenging Francis’ qualifications to join the court. She also asked the court to order the governor to appoint someone else.
Intervention by the court is appropriate, the brief argues, when “a state officer or agency has improperly exercised a power or right derived from the state.”
Her brief argues that six months elapsed between March 23, when the governor was supposed to have made his appointments, and when he did so. During that time, the court operated at less than full strength and continues to do so regarding the Francis seat.
“The petitioner’s challenge in no way questions whether Judge Francis has the abilities or qualifications to be considered for appointment as a justice on the Florida Supreme Court when she meets all the requirements of the Florida Constitution for that position,” the brief says.
The text makes plain
The DeSantis brief retorts that a mere policy disagreement is no reason to overrule the governor’s authority to fill bench vacancies.
As for her argument that candidates need to fulfill all qualifications upon nomination and appointment, “that is not what the Florida Constitution says; instead, the text makes plain that eligibility attaches upon assuming office. Petitioner’s scant analysis is unsupported by the plain text of Article V and this court’s precedent.”
In a bit of cheek, the brief cites the example of Joe Biden, now the presumptive Democratic presidential nominee, to underline its point.
The U.S. Constitution requires U.S. senators to have reached the age of 30 and been a citizen for nine years before taking office, but Biden was 29 when elected in 1972 in Delaware.
However, “Mr. Biden attained the age of 30 by Jan. 5, 1973, when he was sworn into office,” the brief says.
“Surely petitioner would not contend that Mr. Biden was ineligible to be a senator because he had not attained the age of 30 prior to being elected. And that is because the 30 years of age and nine years citizen of the United States are qualifications that must be met by the time a senator assumes office. The same logic applies here.”