Gov. Ron DeSantis must make a new pick for the Florida Supreme Court by Monday, the Court ruled Friday.
In May, DeSantis tapped Judge Renatha Francis to join the Supreme Court, but noted she would be on maternity leave until the third week of September. Francis is just shy of the 10-year Florida Bar membership requirement to sit on the Court, which drew a lawsuit from Rep. Geraldine Thompson. The Governor ridiculed the lawsuit this week as “politically motivated” and “hypocritical.”
In March, DeSantis delayed his decision to select two new Justices because of the COVID-19 pandemic. Ultimately, he named Francis and now-Justice John Couriel, but the final seat on the bench has remained effectively vacant for months.
“The Governor has not satisfied his legal obligation to fill the vacancy by making a constitutionally valid appointment,” the Court wrote.
The 10-year membership requirement and 60-day deadline to appoint justices is a rule, not a standard, the Court noted in its unanimous opinion.
“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 (Antonin) Scalia observed, ‘is what makes a government a government of laws and not of men.'”
The Court also noted the Governor called his May decision to tap Francis an announcement rather than an appointment, which it said ran contrary to the Governor’s claim that he had completed his legal duty in May.
Francis, a Black woman and immigrant, would have been the first Jamaican American on the Court.
On Wednesday, DeSantis made a bipartisan stand alongside Black elected Democrats in South Florida calling for Thompson to drop her suit. Thompson, also a Black woman, has pushed for a Black Justice appointee to the Court, and the Governor used that to hit back at the Windermere Democrat.
“If that is your goal, then this lawsuit is totally undermining what you stated that you wanted to do,” DeSantis said. “When I see a politician saying one thing and doing another, to me, that’s the hypocrisy that so many people are sick and tired of when it comes to people in office. I think the reason why you’re seeing the hypocritical stance is partisanship.”
Thompson also returned a counterpunch to the Governor during a Friday press conference following the decision.
“The Governor says that he is a textualist and he wants strict constructionalism,” the Representative said. “Well that’s what the Florida Supreme Court gave him with this case.”
And she rejected DeSantis’ claim about diversity. The Judicial Nominating Commission, which the Governor appoints, had the opportunity to name other possible Black jurists, she added, but only nominated one that was unqualified.
“While the Governor touts his commitment to diversity, his actions belie what he says,” Thompson said. “We’re not looking for words, we’re looking for actions.”
She also shot down DeSantis’ claim that her lawsuit was politically motivated. Instead, she said she was motivated by the independence and autonomy of and confidence in the Florida Supreme Court.
“The only political motivation that I see is the Governor, who wants to stack the courts with members of The Federalist Society and people like (U.S. Supreme Court Justice) Clarence Thomas, and therefore he wants the Court to be a rubber stamp for him.”
Amid the Governor’s accusations of political maneuvering, Thompson called DeSantis’ appointment of Francis and supporters’ defense of his selection “the worst form of racial tokenism.”
Thompson’s House colleague, Rep. Dotie Joseph, said she reaffirmed the Legislative Black Caucus’ support for Francis. Contrasting her to Thomas, who she said is sometimes characterized as “someone who exemplifies the expression that all skinfolk ain’t kinfolk.” Joseph said Francis’ conservatism doesn’t disqualify her from serving.
“When interviewing the prospective justice, my colleagues and I on the Florida Legislative Black Caucus determined that she is not a Clarence Thomas. This is not to disparage him, but this is to address that issue directly head on.”
But Thompson said Sen. Bobby Powell, the Legislative Black Caucus Chair, denied that the Caucus endorsed Francis.
“That was absolutely not the truth, not factual. She had now been empowered, or asked or sent to that press conference to speak on behalf of the Black Caucus.”
At issue was a committee within the Caucus that recommended Francis’ appointment because the JNC named no other African American nominees. However, the committee never brought that recommendation to the full Caucus, and the recommendation was never ratified, but the committee sent the recommendation to the Governor anyway. Thompson says her name was attached to the recommendation despite her opposition.
“The Governor is trying to put a wedge between members of the Black Caucus,” Thompson said. “He is not going to be successful in that effort.”
The Governor has until noon Monday to name a new Justice with no chance at a rehearing or clarification from the Court. Jonathan Gerber, Jamie Grosshans, Norma Lindsey, Timothy Osterhaus, Eliot Pedrosa, Lori Rowe and Meredith Sasso comprise the remaining list of nominees from the JNC.
The same day DeSantis stood alongside Democrats, including Broward County Mayor Dale Holness, Miramar Mayor Wayne Messam and Joseph, the Republican Party of Florida was making a social media push calling for Thompson to rescind her lawsuit, tweeting #JusticeforFrancis.
U.S. Rep. Matt Gaetz, a Fort Walton Beach Republican, was the first elected official to weigh-in after the Court’s decision.
“Some on the Court who think they can pressure Gov. DeSantis to pick their preferred choice are mistaken,” he tweeted.
Sen. Perry Thurston in his response called for JNC members to resign.