Search for new justice exposes Florida’s flaws | Editorial

The “help wanted” sign is back at the Florida Supreme Court.

The prestige and power are awesome, the salary is a respectable $239,446, and one can count on earning much more on returning to private practice — as have two recently departed justices.

Although some 28,000 lawyers and judges are eligible, only three applied by the initial April 3 deadline set by the Supreme Court Judicial Nominating Commission (JNC). That revealed a lot.

The least of it was that the deadline was too short, only a week after the invitation for applications was posted. Had the JNC not obtained the governor’s permission to extend it two weeks, to April 17, the panel would have been required to nominate all three, under the state constitution.

That would have been mortifying because one of the three, Tampa attorney Belinda Gail Quarterman Noah, had her law license suspended for 30 days in 2014 for poorly representing clients in bankruptcy court.

The fix was in, it appeared

The situation remains embarrassing in a larger sense.

The legal establishment’s application boycott — that, in effect, is what it was — reflects how ruthlessly DeSantis and his cronies have politicized the court and how impossible most lawyers know their chances for appointment would be.

To put it bluntly, it looked like the fix was in.

We don’t want to go back to the days when Florida chose appellate judges by popular election. That’s proven to be a disaster in adjacent states such as Alabama, and it would short-circuit the safeguards, such as Senate confirmation of appointments, meant to maintain a consistent, ethical judicial branch. But Florida’s system has been kneecapped by slow erosion of the nominating process, which was initially designed to produce balanced, high-quality judicial selection but now gives the governor near-total control.

Since DeSantis was elected five years ago, the Supreme Court’s nominating commission has nominated, and he has appointed ,only members of the right-wing Federalist Society

Besides Noah, the other two applicants who met the April 3 deadline are Thomas Palermo, a Tampa circuit judge and former federal prosecutor, whom DeSantis appointed in 2019, and Meredith Sasso, a Federalist member and chief judge of the new Sixth District Court of Appeal in Lakeland.

Sasso’s initial appointment to the Fifth DCA in 2018, as one of Gov. Rick Scott’s last acts, was controversial because of her relative inexperience and her employment history as Scott’s deputy general counsel. Sasso’s father-in-law, Michael C. Sasso, was a member of the Fifth DCA nominating commission that forwarded her name to Scott. He recused himself from voting on her inclusion on the list of nominees, which included four sitting judges. Scott picked Sasso.

Last year, Sasso applied for the Supreme Court vacancy left by the retirement of Alan Lawson and ended up on the list of finalists again, though several other appellate judges didn’t make the cut. DeSantis chose Renatha Francis for that vacancy, whom he’d previously attempted to appoint before she met the minimum experience levels as an attorney. It’s not hard to spot the trends here.

DeSantis’ six Supreme Court appointees so far, including two who left for federal judgeships, have repositioned the court at conservative extremes on the death penalty and almost every other civil and criminal justice issue that comes before it. Only one justice, Jorge Labarga, appointed by Gov. Charlie Crist in 2009, has been dissenting to that.

Whoever succeeds Justice Ricky Polston, who retired March 31, will make it five DeSantis appointees on the seven-member court. No other Florida governor in modern history has had such an impact on the court’s membership.

It is widely assumed that the court will uphold Florida’s current ban on abortions after 15 weeks by revoking its 1989 ruling that abortion is protected by Florida’s constitutional right to privacy. Attorney General Ashley Moody is urging that extreme outcome, which would also effectively outlaw nearly all abortions because of the six-week deadline the Legislature is about to enact in the current session.

What happens next?

The question of the moment is how many more applications the JNC might reasonably expect by April 17. The application form is so labor intensive that completed packages can run 80 pages or more.

Yet now, as never before, is a time for qualified people to apply no matter how slim their chances. For the JNC to brush them off would speak volumes to the public about what has happened to judicial independence and integrity in Florida.

Gov. Reubin Askew (1971-1979) established nominating commissions to be independent. But that vanished in 2001 under Gov. Jeb Bush, when the Legislature empowered the governors to appoint all nine members of each nominating commission.

It would take a statewide ballot initiative to restore the original, more balanced system. Admittedly, a dramatic move back to an all-elected judiciary would be far easier to sell.

The Wisconsin way

The appeal of direct elections was clearly demonstrated in Wisconsin last week when Janet Protasiewicz, a Milwaukee County judge backed by Democrats, won an open Supreme Court seat. It ended conservative control of the court, virtually assuring that it will overrule Republican legislative gerrymanders and overturn an absolute abortion ban dating to 1849.

It was a triumphant moment for many, but the Wisconsin election was everything judicial selection ideally should not be. It turned on how voters understood she would vote (she openly advocated abortion rights, which is prohibited by Florida’s judicial ethics) and it cost $40 million, the most expensive issue ever. Courts should be above politics; they should not function as legislatures.

It’s also true, however, that courts are the last hope for civil and political rights at a time when legislatures like Florida’s no longer respect them. For 30 years, there has been an intense right-wing campaign to get federal and state courts to disrespect them, too.

Is a popular vote as in Wisconsin the only effective antidote to that? Maybe. But it also holds the potential to drive Florida’s courts to both ends of the ideological spectrum.

Done right, the appointment system is far better. Done badly, as is often the case in today’s Florida, it is no better and in some ways worse. The help wanted sign should say: “Only Federalist Society members need apply.”

The Orlando Sentinel Editorial Board includes Editor-in-Chief Julie Anderson, Opinion Page Editor Krys Fluker and Viewpoints Editor Jay Reddick. This editorial is adapted from an opinion of the Sun Sentinel Editorial Board, which consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Anderson. Send letters to insight@orlandosentinel.com.