Florida’s system for nominating judges has become a partisan tool and must be reformed

Some three weeks ago, the Supreme Court of Florida affirmed its earlier holding in the lawsuit brought by Democratic state Rep. Geraldine Thompson that Republican Gov. Ron DeSantis’ appointment of Judge Renatha Francis to the court was invalid.

The reason was that Judge Francis didn’t meet the state Constitution’s eligibility requirement that a person has been a licensed attorney for 10 years. The court ordered the governor to pick someone else, which he eventually did.

The failed Francis appointment has highlighted the urgent need for reform of the way Florida selects judges.

Florida uses a “merit selection” system for all appellate judges and, if a vacancy occurs a certain amount of time before an election, trial judges. Nine-member judicial nominating commissions screen applicants and send a list of nominees to the governor, who appoints from that list.

This system was put in place following judicial corruption scandals at the partially elected Supreme Court in the 1970s to remove politics from the equation. Originally, the governor and The Florida Bar each appointed three members and those six selected the final three non-lawyers from the community.

Gov. Jeb Bush and a GOP Legislature changed that in 2001. Now, the governor appoints five members directly and the Bar nominates four members. But the governor can reject those nominees, over and over, forcing the Bar to send new ones to his liking.

DeSantis, and Republican Gov. Rick Scott before him, have exercised that authority. The first time Scott rejected Bar nominees, then-president Scott Hawkins’ reported public remarks show the Bar rolling over.

As the South Florida Sun-Sentinel editorial board has said, the JNCs have since become nothing more than “political patronage committees” controlled by the governor.

The five direct appointments to the Supreme Court JNC in Jan. 2020, when the JNC nominated Judge Francis, included two former general counsels to Gov. Scott (one of whom was the chair of the JNC), a former Scott deputy general counsel, and a major GOP donor. All five are members of or regularly participate in the programming of the Federalist Society for Law and Public Policy Studies. The Federalist Society is a powerful, ultra-conservative legal organization that professes to be nonpartisan — a very dubious claim.

Indeed, the Federalist Society was one of two organizations then-candidate Donald Trump turned to in 2016 to create two lists of possible Supreme Court nominees, an unprecedented move that is credited with helping him win the election. The organization influences the appointments of Florida judges.

There have long been whispers surrounding the JNCs. No longer. In June 2019, Politico reported that Gov. DeSantis’ lawyers pressured the chair of a trial court JNC to make sure the commission nominated a specific person (a Federalist Society member) whom the JNC originally found unqualified.

The governor then appointed her. The appointment letter contains an unusual handwritten note — “Congrats!” — that appears to have been written by the governor himself. When the chair later protested the interference, the governor’s office forced the longtime JNC member and DeSantis supporter to resign.

DeSantis didn’t seem to think his office did anything wrong. His communications director told the Sun-Sentinel’s editorial board, “There is nothing inappropriate with recommending names to be considered.” With that attitude, it is hard to believe similar improper meddling does not occur at the more important appellate level.

But forget that. Here, the Supreme Court JNC not only ignored the Constitution when it nominated Judge Francis. As Geraldine Thompson said in her petition, the JNC violated its own rules — that it cannot even consider an ineligible applicant.

That is prima facie evidence of impropriety. And this is not a onetime thing. The JNC for the Fourth District Court of Appeal violated its equivalent rule (pp. 43-44) when in April it nominated Judge Francis for another vacancy she was not eligible to fill — after I wrote an article questioning Francis’ Supreme Court eligibility.

Democratic state Sen. Perry Thurston, a critic of the current JNC system, has called on the Supreme Court JNC’s members to resign. They should. It was obvious Judge Francis (a Federalist Society member) was ineligible. The JNC nominated her anyway.

In invalidating the appointment, the court rejected each of the governor’s ridiculous arguments in a majority opinion written by DeSantis appointee Justice Carlos Muñiz. It also took a shot at the JNC for nominating an ineligible applicant in the first place: “The JNC itself made the decision to nominate a constitutionally ineligible candidate, and it is responsible for the consequences of that decision.”

The court understood the stakes: The lawsuit implicated its “institutional integrity” — the court’s own words. The JNC, and DeSantis, put the court’s legitimacy at risk.

Sen. Thurston will propose legislation to restore the pre-2001 JNCs, as he has before. That’s a well-intentioned nonstarter. Conservatives aren’t about to give up their control over judicial appointments.

One would hope that, in the wake of this mess, DeSantis could exercise self-restraint in his direct JNC appointments. That’s unlikely. Just a few months ago, in July, he appointed a 2016 law school graduate (and Federalist Society member) to the JNC for the Fourth District. And I can’t find any time when The Florida Bar publicly opposed gubernatorial rejections of its nominees.

It’s the role of the legal profession in the Francis affair that is the most disappointing. Lawyers expressed much disgust at the nomination and subsequent appointment — in private. In public, only silence. (Except for me and one or two others.)

In fact, when the governor made the appointments of Francis and now-Justice John Couriel, the Bar’s leadership issued an obsequious statement applauding the Francis appointment.

Bruce Rogow, a prominent lawyer, recently told the Palm Beach Post that the Bar itself should have filed the lawsuit to block the appointment. Sadly, it could not have without jeopardizing its independence. Yet our profession’s éminences grises could have brought the lawsuit, or at least said something. Their failure to do so is a complete and embarrassing failure to stand up for the rule of law and an independent judiciary.

But it’s not too late. Presidents of The Florida Bar have frequently criticized the current JNC system, with at least one calling for a return to the pre-2001 system. Only a few years after the changes, one presciently wrote that they “resulted in a strain on judicial independence and an increase in political appointments — from the commissioners to the judges themselves.”

The failed Francis appointment has created an opportunity for the profession, led by the Bar, to mount a serious, sustained, and public campaign for JNC reform. The Bar should take the opportunity now presented to it, even if the task sets it against powerful forces.

Things simply cannot go on this way.