Once a Model of Independence, Florida’s Judicial Nominating Process Is Now an Irrelevant Farce

The panel that screens Florida Supreme Court nominees for Gov. Ron DeSantis got more than its members may have bargained for when veteran prosecutor Victoria Avalon appeared before them on May 3. They got a warning about the judiciary’s legitimacy.

Her jeremiad touched on Justice Clarence Thomas’ acceptance of expensive gifts at the U.S. Supreme Court as well as the fairness of Florida’s judicial nominations process, created by former Gov. Reubin Askew in 1971 following improprieties by justices of the Florida Supreme Court. The idea was to remove politics from the process but, under Republican governors, that independence has been lost.




Avalon asserted during her interview, one of 15 the Florida Supreme Court Judicial Nominating Commission heard that day, that doubts about judicial legitimacy have reached “crisis” level. (The Phoenix reviewed the Florida Channel video of those 20-minute interviews in preparing this story.)

“We are in a crisis in our country,” she said.

“You cannot turn on the television or streaming news without seeing the highest court in this land embroiled in scandal day after day after day. The highest justices in our system accused of improprieties — of taking expensive gifts, expensive vacations,” she said.

“We think that that does not percolate down to Florida. Well, it percolates down to everywhere. Everywhere,” she said.

“I am not throwing any shade on anyone in this room, or anyone involved in the judicial selection process,” Avalon stressed. The West Virginia native is director of appellate and civil litigation in the state’s attorney’s office for Polk, Highlands, and Hardee Counties who worked as a volunteer EMT during college and served stints as an Army MP and corrections and probation officer.

Perceptions

“I’m talking about perceptions here, not about reality. There is a reason that when you all opened applications for the most prestigious seat in Florida’s judiciary that you got three applications.” Indeed, the JNC had to reopen the nominations to attract more applicants.

“And it is not because you only had a week to apply. When I applied it took me less than an hour to put my application together. Anyone who aspires to judicial office has one ready and can edit it and send it,” Avalon continued.




Rather, Avalon reported a perception out there that the fix was in — that DeSantis had already made his choice and it was up to the panel to go through the motions of independence. Avalon knew of this perception, she said, because of the responses of her co-workers in the court system when they learned she was applying.

“All of them were asking me, why are you wasting your time. Everyone knows who’s going to get picked. That may not be true, but it is the perspective,” Avalon said.

Members of the selection panel doing the interviews appeared taken aback by Avalon’s comments. And in fact, they didn’t recommend her for the Florida Supreme Court vacancy.

Pre-ordained

On May 23, DeSantis chose Meredith Sasso, former chief judge of the newly created Sixth District Court of Appeal. Headquartered in Lakeland, the new court covers Hardee, Highlands, Polk Counties, Charlotte, Collier, Glades, Hendry, Lee, Orange, and Osceola Counties.

But Avalon made a fair point, said Bob Jarvis, professor of constitutional law at the Nova Southeastern University Shepard Broad College of Law, in an email to the Phoenix.

“The fact that JNC picks are pre-ordained is an open secret,” Jarvis wrote.

“As I regularly tell my students, the JNC system, which was supposed to be independent (and functioned as such originally), now is merely a rubber stamp for the governor. Thus, rather than going out and finding the best judicial candidates, the JNC today does the governor’s bidding,” Jarvis continued.

But, since taking office in January 2019, and now in the first year of his second term while running for president, DeSantis has remade the state high court, having appointed five of its seven justices (and that may understate his influence, since two of the governor’s initial picks have been elevated to the U.S. Court of Appeals for the Eleventh Circuit).

Only one justice sitting in Tallahassee — Jorge Labarga, appointed by Charlie Crist when Crist was a Republican governor — could be considered moderate or liberal leaning.




The new court, overwhelmingly dominated by conservative members of the Federalist Society for Law and Public Policy Studies, ostensibly a debating society but in practice a machine for launching young lawyers into the conservative legal movement, has proven more than willing to do away with even well-settled precedent, notably regarding the death penalty.

The Supreme Court selection process transpired as the court deliberates on whether to uphold the 15-week abortion ban the Legislature passed last year and that DeSantis signed into law. The six-week ban that followed this year is contingent on the court upholding the earlier legislation.

Upholding the ban would require the court to overrule its 1989 precedent in In re T.W., holding that the voter-approved privacy clause in the Florida Constitution extends to the right to seek abortions.

Doing that to a constitutional ruling that has stood for decades would not be popular: Some 75% of registered Florida voters polled in March by the University of North Florida were somewhat or strongly opposed to the six-week ban. But of course, the U.S. Supreme Court reversed Roe v. Wade notwithstanding broad public support for abortion rights.

We asked JNC chairman Fred Karlinsky, a shareholder in the Greenberg Traurig law firm, to respond to the suggestion the process was pre-ordained but did not hear back.

Recusal?

Meanwhile, Justice Charles Canady, who, according to the Tampa Bay Times, earned an anti-abortion reputation in his former job as a congressman, is married to Republican State Rep. Jennifer Canady, co-sponsor of this year’s six-week abortion ban. He’s given no indication that he plans to recuse from the case.




Asked about that, court spokesman Paul Flemming told the Phoenix, “Activity in the case is noted in the docket. Any significant action will be announced by us when it happens — email and Twitter alerts, on the website, and included in the docket. There have been no recusals in the case.”

Jamie Grosshans, another DeSantis appointee to the state high court, was affiliated with the Alliance Defending Freedom, organized “to keep the doors open for the Gospel by advocating for religious liberty, the sanctity of human life, freedom of speech, and marriage and family,” the Tampa Bay Times also reported.

Intriguingly, Chief Justice Carlos Muñiz, who’s reputation is solidly conservative, wrote in a 2004 article that “[o]ne purpose of the privacy amendment clearly was to give the abortion right a textual foundation in our state constitution,” The Washington Post reported this spring. Without explanation, he did not participate in an order issued by the court in January allowing the 15-week ban to take effect pending a final ruling. Without explanation, neither Muñiz nor Justice Renatha Francis participated in the order.

Stare decisis

Leonard Leo, listed as co-chairman of the board of directors and former executive vice president of the Federalist Society, vetted federal court nominees for former President Donald Trump, including the three U.S. Supreme Court nominees who cast the critical votes to overturn Roe v. Wade. Society members dominate Florida’s JNCs for the state Supreme Court and lower courts and Leo reportedly advises DeSantis on judges as well.

Additionally, last year a Chicago electronics magnate gave $1.6 billion to a Leo-led dark money group called the Marble Freedom Fund to invest in Republican causes and candidates, according to reporting by The New York Times.

The only person on the list of six that the panel sent as possible replacements for Polston who didn’t report a Federalist Society affiliation in his paperwork was Michael Thomas McHugh, chief judge of the Twentieth Judicial Circuit in Fort Myers.




“The principle of stare decisis [adherence to precedent] currently is dead at the Florida Supreme Court. That is the logical outcome of a group (the Federalist Society) that has a specific agenda (e.g., overturning abortion rights) and is willing to do whatever it takes to fulfill its agenda,” Jarvis, of Nova Law, told the Phoenix.

“Thus, it should come as no surprise to anyone that any candidate who currently is being seriously looked at for appointment to the Florida Supreme Court does not feel the least bit constrained by stare decisis,” Jarvis wrote.

Stare decisis — intended “to promote consistent, predictable rulings on cases of similar nature” — and judicial legitimacy were clearly on the panel’s minds. During the interviews, Timothy Cerio, president, CEO, and executive director of Citizens Property Insurance Corp., and other panelists asked candidates about them specifically.

This after Pro Publica reported in April that Justice Thomas hadn’t disclosed expensive gifts and travel given to him by billionaire Harlan Crow. Later it emerged that Crow had bought Thomas’ mother’s house and paid his grand-nephew’s public-school fees. He hadn’t disclosed those, either. As of May 24, 41% percent of Americans approved of the nation’s highest court, CNN reported.

In Tallahassee, meanwhile, there’s been a game of musical chairs going on at the state Supreme Court, with two justices leaving for high-paying jobs and allowing DeSantis to name his allies as their replacements.

Sasso, for example, replaces Ricky Polston, who left to become general counsel of Citizens Property Insurance Corp. but shortly left there to become a partner at the politically connected Shutts & Bowen law firm. Alan Lawson, appointed to the court by Scott in 2012, left at the end of August to become a new named partner in Lawson Huck Gonzalez, another law firm with political juice.

‘Misunderstanding’

Judging by the interviews that day in May, it wasn’t clear the most of the lawyers being screened or their screeners appreciated Avalon’s point.




Sasso, for example, acknowledged “institutional attacks that we see on the court’s legitimacy” but suggested only that the justices “show our work in opinions to show that we’re following the law” and take public-speaking opportunities so as not to “cloister ourselves even more as a result of attacks.”

Cerio insisted at one point during the interviews, “The public and the media attack the institution, question the legitimacy because they don’t like the outcome.”

Jared Edward Smith, another Sixth District Court of Appeal judge who’d applied for the state Supreme Court appointment, blamed “a misunderstanding in general of what the role of a judge is.”

“People think of judges as the fix-alls. They think somehow because you wear a black robe that you then are the fixer of all societal problems. And that if somebody brings a case in front of a judge, whether it’s a Supreme Court or local judge, they’re just supposed to fix all the problems. And if they don’t, then it’s the judge’s fault,” he said.

“They don’t realize that judges are supposed to be, at least, constrained by the law and the Constitution, and ultimately if there needs to be a change it’s not the judge, typically that makes those changes, it’s the Legislature.”

‘Optics matter’

Avalon noted during her interview that she has participated in four grand jury investigations into public corruption.

“The lesson that I drew from that all of that is that appearances matter, optics matter. We who deal in the justice system perhaps have faith that the judiciary isn’t affected by such things, but to the person on the street that looks like payola. That is a perception that is a cancer in our system, and that’s got to change.”

Jesse Panuccio, a partner in Boies Schiller Flexer’s Washington and Fort Lauderdale offices who serves on the JNC and participated in the interviews, seemed offended at the payola reference.

“Anyone can make an accusation about the judiciary, judges,” he told Avalon. “As members of the Bar, what obligation do we have to dispel those accusations or rebut them when they’re not true rather than repeat them or give air to them?”

“I wasn’t accusing the highest court in the land of payola. What I was telling you is that that’s what it looks like to the grassroots,” Avalon answered. “I don’t know what’s going up there. I just know what people on the street are going to see that as.”

In a telephone interview this week, Avalon told the Phoenix that she was unsurprised by the JNC’s pick. She noted that Sasso is well connected, having served as an aide to former Gov. Rick Scott and as the founding chief judge of the Sixth District court. She’s married to attorney Michael Sasso, appointed by DeSantis to screen judges for the Fifth and Sixth district courts of appeal.

All JNC members, Avalon said, are “picked by one person who presumably is looking for people who are like him,” meaning the governor, “and they’re going to pick someone like them. Someone with the right friends and right connections.”

‘Groupthink’

As originally designed, the governor of Florida named three members of the state Supreme Court JNC, who didn’t need to be lawyers; the Florida Bar nominated another three of its members; and those six selected another three nonlawyers. In 2001, however, then-Gov. Jeb Bush instigated a change that gave governors sole appointment authority to these panels.




Now Avalon worries about “groupthink” within the judiciary, with judges reinforcing each others’ approaches to the law and prejudices.

Avalon counts among her friends members of the American Constitution Society who espouse a “living constitution,” one interpreted according to contemporary social norms. To herself, a self-described “textualist” and former member of the Federalist Society, this is “heresy,” she said.

Still, judicial interpretation benefits from a conversation between those two or additional schools of thought, Avalon believes.

“I think that filling a room with like-minded voices — that promotes homogeneity in judicial decisions and that’s a bad thing.” Rather, a “cacophony of voices” is “more likely to come up collectively with a better product than an echo chamber” would.

“I am a blue-collar lawyer. I don’t have a megaphone. No one’s listening to me. It is likely that when I walk out that door none of you will ever see me again and I will go back to Bartow and practice law. But each of you has influence. You have a megaphone,” Avalon said during her May interview.

“Colleagues, you and I hold the keys to an entire branch of our justice system. We’re lawyers, and that comes with a sacred trust, and we have to be careful how it’s discharged.”

–Michael Moline, Florida Phoenix