The Florida Supreme Court: A male bastion with one woman and no African Americans

By: - September 26, 2019 7:00 am

The Florida Supreme Court as it stood on Sept. 25, 2019. Front row (l-r): Justice Ricky Polston, Chief Justice Charles T. Canady, Justice Jorge Labarga. Back row (l-r): Justice Robert J. Luck, Justice Alan Lawson, Justice Barbara Lagoa, Justice Carlos G. Muñiz. Lagoa and Luck have since departed. Credit: Florida Supreme Court website.

Gov. Ron DeSantis appeared in the Florida Supreme Court’s august chamber on Tuesday to see two of his appointments to the court invested. Looking down on the proceedings were portraits of past justices. They included just four women and four African Americans.

“In the court’s whole 170-year history, we have a grand total of four women who have ever served on it,” Jennifer Shoaf Richardson, immediate past president of the nonpartisan Florida Association of Women Lawyers, said in a recent telephone interview.

“If you walk into the Supreme Court and you look at the portraits on the wall, it’s just a stark reminder that women have been absent from this highest level.”

One of DeSantis’ appointees, Barbara Lagoa, is now the only woman serving on the high court. This marks the first time in decades that the state’s high court lacks an African-American justice.

And it seems Lagoa won’t be around long – she and Justice Robert Luck, invested Tuesday along with Justice Carlos Muñiz, seem likely to win confirmation by a Republican-controlled U.S. Senate to the U.S. Court of Appeals for the 11th Circuit, following their nominations by President Trump.

(The three have been serving since January – Tuesday’s event was ceremonial. Lagoa’s investiture happened in May.)

Florida Supreme Court
Florida Supreme Court

That would give DeSantis another two picks for the Supreme Court. Advocates such as Richardson and Eugene Pettis, the first African American president of The Florida Bar, hope the governor will keep in mind the need to build a court with a healthy balance of race and gender.

“I thought it was a definite regression for the state, but we have another opportunity,” Pettis said. “If we have one occasion, you can say that’s just how the cards fell. If we allow two more seats to open up and not take it as an opportunity to diversify this court, I think it’s more than just coincidence.”

For the record, the governor’s aides said he doesn’t consider demographic backgrounds when naming judges.

“Gov. DeSantis makes his judicial appointments solely based on merit and the candidates’ understanding of the proper role of the judiciary, which is important but limited,” his communications office said in a written statement. “Respect for the Constitution means that judges must apply the law as it is written and not legislate from the bench.”

DeSantis reflected upon his philosophy regarding bench appointments during Tuesday’s investitures.

“The challenge of looking at what makes a good judge is to find the judges who understand the difference between applying judgment and exercising legislative will,” he said. “[Alexander] Hamilton made clear that there may be times when an act of the legislature must fall because it conflicts with the Constitution. But that’s not because the judiciary is superior to the legislature. It’s simply because the Constitution is superior to both.”

In fact, half of the 35 appointments DeSantis has made thus far at all levels of the judiciary, including trial and appellate benches, half have been women, 13 percent African American, 25 percent Hispanic, and 3 percent Asian or other minority group members. The oldest was 61 and the youngest 34.

According to U.S. Census data, African Americans comprise around 17 percent of Florida’s population, Hispanics 26 percent, and Asians about 3 percent. That means African Americans are lagging in bench appointments relative to their share of the population – and conspicuously absent from the state’s highest court.

The last African American to sit on the Florida Supreme Court was Peggy Quince, who served from 1999 until her departure in January, after reaching the mandatory retirement age. That, and the additional forced retirement of justices Barbara Pariente and R. Fred Lewis at the same time, opened the three vacancies for DeSantis to fill during the first month of his term.

The first African American to serve on the court was Joseph Woodrow Hatchett, between 1975 and 1979. Next was Leander Shaw, who served between 1983 and 2003, followed by James E.C. Perry, between 2009 and 2016.

Rosemary Barkett was the first woman on the high court, serving from 1985 until her elevation to the 11th Circuit in 1994.

It’s not clear when Lagoa and Luck might be confirmed to the federal appellate bench. An aide to Senate Judiciary Chairman Lindsay Graham said no hearing had been scheduled yet. The Senate has confirmed more than 150 federal judges since Trump took office.

DeSantis seems confident Lagoa and Luck will win confirmation. “We will then have another process that unfolds here with the Supreme Court of Florida again,” he said earlier this week.

The process of replacing the jurists won’t begin until they’ve created actual vacancies, according to the governor’s press aides. As with all bench vacancies in Florida, a judicial nominating commission, or JNC, will vet candidates and make recommendations to the governor.

The Florida Constitution requires that each of the state’s five appellate districts must be represented by at least one justice. Lagoa and Luck both hail from the Third Appellate District, covering Miami-Dade and Monroe counties. It would be the only district not represented should Lagoa and Luck both leave.

DeSantis’ philosophy for picking judges shouldn’t rule out minority group members, Pettis said. Plenty of people of color lean conservative.

“I don’t think we can allow the governor or the selection process to come up with such narrow constraints that we sanitize the pool of applicants before we even get started. We have to make sure that the pool is reflective of who we are,” Pettis said.

“The only thing that’s really important is that we select champions who are going to enforce the law evenhandedly and recognize that a judge’s role is not to create the law but to enforce and interpret the law. If we commit to those things, we’re going to diversify the pool.”

Richardson expects the applicants likely will include many who sought the bench earlier this year, but “I hope we see some new faces,” she said.

Only 11 within the last pool of applicants were women, who as a group comprise 38 percent of Florida Bar members in good standing, she noted. “This court is deciding issues that affect all Floridians – and, of course, 50 percent of Floridians are women.”

Of the 11 finalists submitted to DeSantis, two were women.

A diverse bench informs rulings in cases before the court but also to its role as overseer and rule-setter for the state’s court system. Richardson cited a rule of court she proposed to the justices last year that would make it easier for litigators to seek trial delays, with a client’s permission, to accommodate parental leave. In arguing for the change, Richardson’s organization, with backing from the Bar, argued that women shoulder an outsized burden of parental duties. The court has yet to decide the matter.

“While every member of the court is a parent, of course, Justice Lagoa has had that experience in a different way,” she said.

The court has the final word on disciplining judges and attorneys, too. “There are all kinds of issues where we hope that the voice of women, the experience of women, will be heard by the court.”

FAWL is encouraging aspiring jurists to begin work on applications right away. Additionally, the organization helps train new members of the Supreme Court nominating commission, in cooperation with the governor’s office, Richardson said.

“We have a good amount of lead time right now. Applicants can make efforts to get to know the JNC members at this time and really put themselves in a good position for success.

Even though these applicants, we hope, will be fast tracked in Washington, we just can’t control that timeline. Now is the time for recruitment. That, we can control,” she said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.