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.
JNC’s defense of Francis nomination 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.
“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.
Governor ﬁnally blinks
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.
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 swearingin 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.