The Florida Supreme Court has ordered Gov. Ron DeSantis to appoint a new justice of the court no later than Monday, and it can’t be Renatha Francis, who would have been the lone Black justice on the high court.
The new appointment on Monday would not be a Black judge, based on the list of candidates already vetted from which DeSantis must choose.
In a stinging rebuke to the governor, a unanimous court said in a terse order handed down Friday, just hours after receiving the last pleading in the case, that DeSantis has allowed the vacancy he wanted Francis to fill to exist months after the deadline passed. (Docket here.)
Francis wasn’t qualified when the governor selected her on May 26, because she hasn’t served the constitutionally mandated 10 years’ membership in The Florida Bar, and she’s not qualified now, the court said.
The justice even quoted the late U.S. Supreme Court justice Antonin Scalia — a founder of the textualist approach to judging that DeSantis professes to revere — at the governor.
“The Constitution’s 10-year Bar membership requirement and sixty-day appointment deadline are bright-line textual mandates that impose rules rather than standards and prioritize certainty over discretion,” the court said.
“To some, enforcing rules like these might seem needlessly formalistic when the result is to preclude the appointment of an otherwise qualified candidate. But ‘formalism,’ as Justice Scalia observed, ‘is what makes a government a government of laws and not of men.’”
John Curiel, selected by DeSantis to the court at the same time as Francis, recused himself from the case. But even Justice Ricky Polston, who’d agreed at one point in the case with DeSantis that the Francis appointment was permissible, joined Friday’s order.
“The governor must fully comply with this order no later than noon on Monday, Sept. 14, 2020,” the court said.
As for what the governor must do, the court said:
“In these circumstances, the Constitution and directly on-point precedent dictate the remedy. We hold that the constitution requires the governor immediately to appoint and commission a constitutionally eligible nominee from among the seven remaining candidates already certified by the judicial nominating commission.”
State Rep. Geraldine Thompson of Orange County had filed a legal challenge to block Francis as unqualified. Initially, her complaint included the Florida Supreme Court Judicial Nominating Commission that included Francis and Couriel among nine candidates for two vacancies, but the high court ruled Thompson had waited to long to prevail against the commission.
Still, the court in August expressly rejected DeSantis’ argument that Francis need not meet the Bar membership requirement immediately. In fact, the governor was still arguing the technical question of whether he’d appointed her on May 26 or would do so once she qualified.
The order expressly prohibits an outcome DeSantis’ attorneys signaled in a legal brief filed two days earlier: That the proceedings might stretch long enough for Francis’ 10-year Bar anniversary, which falls on Sept. 24, so that she could join the court after all.
He’d acknowledge from the time he selected Francis in on May 26 that she’d have to wait for that anniversary to take the seat.
On Friday, the court had zero patience for such hair-splitting: The vacancies opened in November. The JNC submitted its candidates in January. Constitutionally, DeSantis had 60 days to appoint a qualified candidate. (The order doesn’t even mention DeSantis’ explanation that he was preoccupied with the COVID-19 crisis.)
“Not having been a member of the Florida Bar for 10 years, Judge Renatha Francis was constitutionally ineligible for the office of justice of the Supreme Court on the expiration of the Constitution’s 60-day deadline. And Judge Francis remains constitutionally ineligible now,” the justices said.
“We reject the governor’s suggestion that this remedy somehow intrudes on the judicial nominating commission’s constitutional prerogatives by ‘taking a red pen’ to the JNC’s certified list. The JNC itself made the decision to nominate a constitutionally ineligible candidate, and it is responsible for the consequences of that decision,” the court said.
Since taking office in January 2019, DeSantis took advantage of vacancies forced through mandatory retirements of the high court’s liberal wing to forge an overwhelming conservative majority of justices.
He did so largely by turning to the Federalist Society for Law and Public Policy Studies, which grooms young conservative law students and attorneys for places in the conservative legal establishment. DeSantis himself is affiliated with the group.