Florida Supreme Court orders Gov. DeSantis to appoint a new justice by Monday

A unanimous Florida Supreme Court on Friday rejected a last-minute appeal by Gov. Ron DeSantis and ordered the Republican governor to fill a vacancy on the high court by Monday.

The ruling is the final blow to a weeks-long battle between DeSantis and five of the six justices who ruled on Aug. 27 that the governor’s appointment to the court, Palm Beach County Judge Renatha Francis, is not qualified because she has not been a member of the Florida Bar for 10 years as required by the Constitution.

Francis, 42, was born in Jamaica and would have been the court’s first justice of Caribbean descent who was not from Cuba.

But state Rep. Geraldine Thompson, a Democrat from Windemere, filed a lawsuit in July accusing the governor of violating the Constitution by appointing someone who would not be eligible for the post until Sept. 24., and the court agreed. It also noted that DeSantis violated the 60-day deadline set by the Florida Constitution for filling the vacancy. The governor had appointed Francis on May 26 but was supposed to fill the seat by the end of March.

The court gave the governor until Wednesday to answer why it should not order him to immediately appoint someone who was qualified.

Before he responded, however, a defiant DeSantis assembled several Democratic Black leaders at a press conference in Broward County, to join him in assailing the ruling.

The governor’s petition then argued that he had not appointed Francis in May, but had just “announced” the appointment. He asked the court to allow for oral arguments, a tactic that could have delayed the resolution of the case past Francis’ 10-year anniversary as a member of the Florida Bar.

By Friday, the court slapped down that argument, rejected the governor’s request, and repeated its order that the governor had failed in his constitutional duties.

“The Governor has not satisfied his legal obligation to fill the vacancy by making a constitutionally valid appointment,’’ the court wrote in an opinion signed by five of the justices. Justice John Couriel, who was also appointed by DeSantis on May 26 with Francis, recused himself.

“This is true if one views the Governor as having made a null appointment on May 26 (because Judge Francis was and is constitutionally ineligible),’’ the order continued.

“It is also true if, as the Governor belatedly suggests in his response to the amended petition, the May 26 ‘appointment’ was a mere ‘announcement’ and not an appointment at all. Either approach leads to the same conclusion: the Governor has not complied with the constitution’s clear commands.”

Thompson said the ruling “strengthens the confidence that our citizens have in our court system, and it says that these are justices who are going to be objective, impartial and fair, and rule based on the law.”

But Thompson laid the blame for the ruling on the governor, saying she had asked to meet with DeSantis in July to ask him to withdraw the flawed nomination and avoid the lawsuit, but he refused to meet with her.

She called that “arrogance” and suggested that if he was interested in diversity on the court, he had three opportunities to appoint Blacks, “but apparently in his mind, tokenism is what he is out to achieve.”

Within hours of the ruling, Francis sent a letter to the governor saying she “decided to withdraw my name from consideration for the position.” The three-sentence letter, reported in the South Florida Sun Sentinel, made no mention of the fact that she was not eligible for the position from which she claimed to be withdrawing.

“Thank you for your support, and for standing by me throughout this process, for which I am incredibly humbled,’’ she wrote.

DeSantis had vowed to make the court one of the most conservative in the nation, aligning it with the strict textualist approach embraced by the Federalist Society, the national organization devoted to advancing conservative lawyers to the federal and state bench.

In its opinion, the court noted that the Constitution’s 10-year requirement to be a member of the Florida Bar, and the 60-day deadline the governor had to fill a vacancy are “bright-line textual mandates that impose rules rather than standards and prioritize certainty over discretion.”

The opinion then quoted former U.S. Supreme Court Justice Antonin Scalia, an icon of the textualist movement.

“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 Scalia observed, ‘is what makes a government a government of laws and not of men.’ ”

The court ordered the governor to choose from the list of seven remaining nominees, four of whom are women, and make an appointment by Monday, Sept. 14. They are: Jonathan Gerber, Jamie Grosshans, Norma Lindsey, Timothy Osterhaus, Eliot Pedrosa, Lori Rowe and Meredith Sasso.

“Because we believe the Governor will do so, we grant the amended petition for a writ of mandamus but withhold issuance of the writ,’’ the court concluded. “No motion for rehearing or clarification will be entertained by this Court.”

Thompson said she had no regrets, even though none of the remaining candidates are Black and the youthful age of many of the justices may mean it will be several years before an opening occurs again on the bench.

“It is worth the wait to get a fair and impartial person on the Florida Supreme Court who is of color,’’ Thompson said.

This story was originally published September 11, 2020 at 9:53 AM.