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 the JNC 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.
The time has come to ask, and we do so with regret, whether choosing appellate judges by popular election, as Florida used to do, might be better.
It would at least provide a check on a governor’s abuse of the appointment power. But there’s no Senate confirmation and judges routinely win their retention elections because they appear on the ballot unopposed every six years.
Since DeSantis was elected five years ago, the commission has nominated and he has appointed only members of the right-wing Federalist Society.
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. She had just met the minimum constitutional requirement of 10 years in the Florida Bar and her father-in-law, Michael C. Sasso, was a member of the Fifth DCA nominating commission. He recused himself from voting on her application.
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 old system, because the Legislature won’t consider it. Raising the necessary millions of dollars would be arduous for what many people might misapprehend as an esoteric subject.
It would be much easier to finance and win an initiative for electing judges.
The Wisconsin way
This potential was clearly demonstrated in Wisconsin last week when Janet Protasiewicz, a liberal 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.
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.
Done right, the appointment system is far better. Done badly, as 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 Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at .
