Gov. DeSantis is reshaping Florida's courts — with the Federalist Society's help
By LAWRENCE MOWER | Tampa Bay Times | Published: November 30, 2019
TALLAHASSEE (Tribune News Service) — Florida Gov. Ron DeSantis was in his element when he gave the opening speech last month at the national convention of the Federalist Society, the organization of conservative and libertarian lawyers.
Citing Federalist papers and 162-year-old U.S. Supreme Court cases, the Harvard-trained attorney made an articulate case against the branch of government he said felt "superior" to the others.
"I think judicial power is too robust right now," DeSantis said. "And I think the checks upon it are just simply inadequate."
Less than a year after taking office, DeSantis is faced with making his fourth and fifth picks for the state Supreme Court, melding Florida's highest court to his legal philosophy.
And his views are indistinguishable from the Federalist Society, whose members have been instrumental in making those picks. Leonard Leo, the society's executive director, vetted the three nominees DeSantis made earlier this year.
Two of those judges were later chosen by President Donald Trump for the federal bench – meaning DeSantis gets two more Supreme Court picks, likely naming them early next year.
At the convention, Leo said he already knew who DeSantis will choose to replace them: "committed Floridian originalists," referring to the "originalist" judicial philosophy popularized by the organization's most revered member – former U.S. Supreme Court Justice Antonin Scalia.
The philosophy goes like this: When reading the law, judges should interpret it as it's written on the page. If the law is messy or unclear – as it often is – judges should not strain to come up with their own interpretations, or rely on what lawmakers might have intended.
That goes for the Constitution as well. The Constitution is not a document that can be interpreted to apply to 21st century problems, as many judges do.
Reshaping the court has long been the goal of Republicans in Tallahassee. Since the GOP controlled the governor's mansion and the Legislature for the past two decades, only the Supreme Court has checked its power, blocking top priorities from school vouchers to redistricting.
After DeSantis was elected, he got to replace the three justices who were appointed by Democratic governors, and some believe Florida's high court is now among the most conservative in the country.
But in his zeal to reshape the courts, DeSantis, or his staff, has been accused of injecting politics into the judicial selection process.
Attorney Alan Landman, a former head of a judicial circuit nominating commission for the Florida judicial circuit court covering Brevard and Seminole counties, quit this year after he said DeSantis' staff asked his to nominate a particular person – a lawyer who was a member of the Federalist Society – to the bench.
Landman said it was highly inappropriate, and that it had never happened when he served under Gov. Rick Scott for eight years.
"When I served (members of the governor's staff) never, never stepped into the (judicial nominating) process," Landman said. "Never, never."
And former judges and lawyers were alarmed when DeSantis' general counsel, Joe Jacquot, asked the chief judge of the Division of Administrative Hearings to step down. DeSantis appointed one of his own lawyers, a Federalist Society chapter president who had virtually no experience in the courtroom.
Last year, Florida's Supreme Court judicial nominating commission stocked with Federalist Society members failed to recommend a single person who was black to the bench, leaving the high court without a black justice for the first time in decades.
Black lawyers are already underrepresented in the legal profession, and there is no guarantee that DeSantis' fourth or fifth nominations will be black.
For Eugene Pettis, the first black president of the Florida Bar, the oversight is unthinkable.
"To be in the state of Florida and have five appointments and not one of them is African American?" Pettis said. "I cannot believe that will happen."
DeSantis spokeswoman Helen Ferre did not say whether DeSantis was committed to appointing a black justice.
"Governor DeSantis expects the (commission) to send the best judicial recommendations that focus on candidates who understand the rule of law and the important but limited role of the judiciary," she said in an email. "Respect for the Constitution is imperative."
The Federalist Society and its philosophy has been popular with Florida governors going back to Jeb Bush, but it hasn't had such an ardent fan in the governor's mansion until DeSantis.
He was a member of the society while at Harvard, and he's able to explain his support for "originalist" philosophy to laymen or lawyers. At the convention last month, he derided judges who didn't subscribe to it.
"You have to have some objective measure to go by," DeSantis said at last month's convention. "It can't just be fly-by-the-seat-of-your-pants philosophizing and imposing whatever idiosyncratic views you have on society under the guise of constitutional interpretation. Originalism provides a mechanism to (restrain) judicial discretion, which I think is very, very important."
By its nature, it means that judges should have less power to strike down laws passed by the Legislature or Congress.
DeSantis last month recounted the Supreme Court's 1857 decision in Dred Scott v. Sandford, in which the court ruled that black people were not intended to be included under the word "citizens" in the Constitution. DeSantis called it "one of the worst cases the Supreme Court ever decided."
The court's chief justice cited state and local laws at the time the Constitution was created to state that black people and white people were supposed to be separated – the kind of legal logic that would rankle "originalists."
On the other hand, critics believe some members want to use the philosophy to overturn Roe v. Wade and weigh in on other social issues.
While the Federalist Society is nonpartisan, it's dominated by conservatives and libertarians, and Trump has drawn on its members and their advice to fill federal court seats. Bob Jarvis, a professor of law at Nova Southeastern University, said their philosophy was just a "fig leaf" for conservatism.
"I would disagree with the characterization that they're not partisan," Jarvis said. "They're highly partisan."
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