A panel on Monday sent a list of six nominees to Gov. Ron DeSantis to fill a Florida Supreme Court vacancy, as the Republican governor is poised to have a majority of the appointees on the state’s high court.
The list of finalists to replace outgoing Justice Alan Lawson includes Palm Beach County Circuit Judge Renatha Francis, whom DeSantis tried to appoint to the Supreme Court in 2020.
Others on the list are Robert Long and Adam Tanenbaum, who are judges on the 1st District Court of Appeal; Anne-Leigh Gaylord Moe, a Hillsborough County circuit judge; Meredith Sasso, a judge on the 5th District Court of Appeal; and Denise Harle, a lawyer with the Alliance Defending Freedom organization.
Lawson this spring announced he will retire from the bench on Aug. 31, more than a decade in advance of justices’ mandatory retirement age of 75.
The Florida Supreme Court Judicial Nominating Commission on Saturday completed interviews of 17 applicants before submitting the list of finalists for DeSantis to consider.
Francis, who was among the applicants interviewed Saturday, is widely expected to be DeSantis’ selection for the job, after justices thwarted his attempt to place her on the Supreme Court two years ago. Francis is the only Black nominee on the list presented to the governor Monday.
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Francis would have been the court’s first Jamaican-American justice, but her appointment became embroiled in a legal and political battle.
Wrangling over Francis’ appointment began in July 2020, when state Rep. Geraldine Thompson, D-Windermere, asked the Supreme Court to find that DeSantis’ choice of Francis violated the state Constitution because Francis would not reach a 10-year Bar membership requirement for justices until Sept. 24, 2020.
DeSantis in May 2020 announced he was choosing Francis and John Couriel to fill two Supreme Court openings, selecting them from a list of nine candidates submitted by the nominating commission.
Couriel immediately joined the Supreme Court, but DeSantis, a Harvard Law School graduate, said Francis would be sworn in as a justice after she reached the Bar requirement months later.
In a rebuke to DeSantis, however, the Supreme Court unanimously rejected his selection of Francis and ordered the governor to appoint another candidate from the list of nominees. He subsequently appointed Justice Jamie Grosshans.
During her interview Saturday, Francis, a member of the conservative Federalist Society, emphasized an approach reflecting DeSantis’ legal stances.
“I can think of no greater honor for any attorney really to be in service of our state, our great country, and to serve on the Florida Supreme Court and to be part of that process to preserve and protect the freedoms that we hold so dear and our constitutional form of government,” said Francis, who was born in Jamaica. “I believe the way that we do that is by adhering to textualism, originalism, which best protects, I think, the founding principles of our country and best preserves our freedoms.”
Since he took office after winning the 2018 gubernatorial election, DeSantis’ appointments have secured a conservative shift on the seven-member court, following the mandatory retirements in 2019 of longtime Justices Barbara Pariente, Peggy Quince and R. Fred Lewis.
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In addition to Couriel and Grosshans, DeSantis appointed Justice Carlos Muniz. They joined Lawson, Chief Justice Charles Canady and Justice Ricky Polston to form a solid conservative majority on the court. Justice Jorge Labarga, who sided with Pariente, Lewis and Quince on many major issues, is now often a lone dissenter.
Shortly after taking office, DeSantis also appointed Robert Luck and Barbara Lagoa to the Supreme Court, but they were later tapped by former President Donald Trump to serve on the 11th U.S. Circuit Court of Appeals. That led to the selections of Couriel and Grosshans.
If she is appointed by DeSantis, Francis would be the only Black justice on the court, which has lacked a Black justice since Quince retired. Grosshans currently is the only female justice.
During her interview Saturday, Francis and other candidates provided a glimpse into how they might rule if they are chosen for the court.
For example, nominating-commission member Tim Cerio asked each of the applicants to opine about “stare decisis,” the concept of relying on court precedent. The conservative-dominated court has overturned a number of high-profile rulings that were issued before DeSantis took office.
“Obviously, the first thing you want to do, and I think that this current court has done an excellent job of doing that, is to determine if the decision, the precedent, got it right. Is it faithful to the text of the governing document that you’re interpreting? If it is, wonderful,” Francis said. “If it was wrongly decided and it’s clearly erroneous, I think you have an obligation to revisit that.”
Tanenbaum, a former federal public defender who served as a general counsel to former House Speaker Richard Corcoran before his appointment by DeSantis to the Tallahassee-based appeals court, was asked about what is known in legal circles as the “counter-majoritarian” difficulty.
The concept refers to judicial actions that overrule or countermand the will of the majority, especially in situations where legislation is overturned. The issue has percolated since a draft U.S. Supreme Court opinion showed that the court appears poised to overturn Roe v. Wade and give states control over abortion rights.
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Tanenbaum referred to a seminal U.S. Supreme Court decision in a case known as Marbury v. Madison, which established the principles of judicial review. Pointing to the 1803 decision, Tanenbaum said that the “superior” law — the U.S. Constitution — should take precedence over “junior” laws.
“When the court, if it does … choose the superior law over the junior law to prevail over a case, that’s not acting anti-majoritarian. That’s acting on behalf of the people directly, what they put in the Constitution, over what their agents have done. In that respect, that is appropriateness, not anti-democratic. It’s actually consistent with the democratic constitutional republic,” he said.
Under state law, DeSantis has 60 days to select Lawson’s replacement. The governor waited nearly four months after receiving a list of nominees before selecting Couriel and Francis in 2020.
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