Gov. Ron DeSantis’ attempt to seat a Black woman on the Florida Supreme Court who was ideologically compatible with him but who wasn’t qualified means the state is unlikely to see a Black justice for the foreseeable future.
The court, in an unsigned but unanimous order, told DeSantis on Friday to review the candidates forwarded to him in January by the Supreme Court Judicial Nominating Commission and find one who, unlike his pick Renatha Francis, has been a member of The Florida Bar for the constitutionally mandated 10 years.
Of the available candidates, none is black. Four women are available, however, if DeSantis wants to diversify the court in that way.
The candidates are:
—Jonathan Gerber, a judge on the 4th District Court of Appeal
—Jamie Grosshans, who sits on the 5th District Court of Appeal
—Norma Lindsey of the 3rd District Court of Appeal
—Timothy Osterhaus of the 1st District Court of Appeal
—Eliott Pedrosa, U.S. executive director of the Inter-American Development Bank
—Lori Rowe, also of the 1st District Court of Appeal
—Meredith Sasso, also of the 5th District Court of Appeal.
The Phoenix published a detailed report about the candidates when the JNC certified them on Jan. 23.
There was no word from the governor about the ruling during his news conference on education in Miami.
Justices must retire when they turn 75 — that’s how DeSantis found himself with three Supreme Court vacancies upon taking office in January 2019. The liberal wing of the court had aged out. It allowed him to appoint dedicated conservatives to the court, including Carlos Muñiz, who joined the order handed down Friday.
Another DeSantis appointee, John Curiel, recused himself from the case.
For the sitting justices, retirement lies many years ahead. The closest to that threshold is Chief Justice Charles Canady, a Charlie Crist appointee who hits 75 in June 2029.
(Exceptions might be if a sitting justice leaves for another job — for example, if a vacancy opens on the U.S. Supreme Court and President Donald Trump gets to make an appointment before leaving office. A list of 20 potential Trump appointees released this week includes Muñiz.)
Justices also are subject to merit retention, meaning the voters get to decide whether to retain or oust them. The timing is determined according to the dates of their appointments.
State Rep. Geraldine Thompson, the Orange Democrat who filed suit over the Renatha Francis appointment, didn’t see that as an avenue to a vacancy; it’s been attempted but never successfully. The most recent attempt came in 2011, when Americans for Prosperity targeted then-justices Fred Lewis, Barbara Pariente, and Peggy Quince. They all won retention. (As it happens, they’re the justices who aged out as DeSantis took office.)
“That’s almost like a lifetime appointment as well,” Thompson said during a Zoom news conference, all but ensuring judicial independence.
“It could be 10 years but it could be 10 months. I think that is worth the wait to get a qualified individual and get a competent person who is not bound by ideology and who is not there to fulfill a political agenda. It’s worth the wait to get a fair and impartial person on the Florida Supreme Court who is of color.”
It wasn’t clear whether the JNC itself needs to do anything in response to the court’s order. Its members, powerful attorneys appointed by the governor, had already sent him its list.
The JNC comprises nine members — four proposed by The Florida Bar and five by the governor. But the governor can reject the Bar candidates. Formerly, the Bar appointed three members, the governor another three, and together those members selected yet another three. The system was changed under former Gov. Jeb Bush to give governors more power.
Another Black Democratic lawmaker, Perry Thurston of Broward County, called upon members of the JNC to resign in light of their nomination of Francis, a Palm Beach County trial judge whom DeSantis had hoped would join the high court on Sept. 24, when she will mark her 10-year anniversary of Bar membership.
Perry said he would introduce legislation to give governors less authority over the commissions.
“Partisanship has not only thoroughly infiltrated the JNC, but has dominated its selection process in the nomination of candidates for openings on our highest court,” Thurston said in a written statement.
“This group has discounted highly qualified candidates and rejected true diversity reflective of this state at every turn. In becoming a political outpost of the governor, they have abdicated their judicial obligations and their moral responsibilities. They need to resign.”
Meanwhile, the irony of DeSantis’ Florida Supreme Court defeat wasn’t lost on Thompson, whose opposition to the Francis appointment culminated in Friday’s order.
“The governor says that he is a textualist and he wants strict constructionism. Well, that’s what the Florida Supreme Court gave him with this case,” Thompson said.