Gov. Ron DeSantis listens as Barbara Lagoa speaks after he named her to the Florida Supreme Court on January 9, 2019, in Miami. Credit: Joe Raedle/Getty Images
The U.S. Senate agreed Wednesday to confirm Barbara Lagoa, who served for less than a year on the Florida Supreme Court, for a seat on the 11th U.S. Circuit Court of Appeals, giving Gov. Ron DeSantis yet another vacancy to fill on the state’s highest court.
The 80-15 vote came one day after the Senate confirmed President Trump’s nomination of Lagoa’s Florida Supreme Court colleague, Robert Luck, to the federal appeals court for Alabama, Florida, and Georgia. Each attracted Democratic as well as Republican support.
Once Lagoa submits her formal resignation, the next step is for the governor to authorize a judicial nominating commission, or JNC, to begin the search for applicants to fill the new state high court vacancies, vet their backgrounds, and suggest finalists for the governor. It has 60 days to do that, and DeSantis another 60 days to review the list.
“President Trump has demonstrated great judgment in nominating justices Barbara Lagoa and Robert Luck to the United States Court of Appeals for the 11th Circuit,” DeSantis said in a written statement.
“I appointed these two justices to the Florida Supreme Court for their demonstrated understanding of the Constitution and the appropriate role of the judiciary. We are proud of these two Floridians who have earned the respect of many for being great jurists and public servants. They will serve our nation well.”
Rick Scott, Florida’s junior U.S. senator, praised the vote via his Twitter feed.
“Congrats to Justice Barbara Lagoa on being confirmed to be a U.S. circuit judge for the 11th Circuit,” Scott wrote. “She was the first Cuban-American to be appointed to the Florida Supreme Court last year and I look forward to her continued service to our state and our country.”
The 11th Circuit, meanwhile, now has a 7-5 majority of Republican-appointed judges, said Professor Carl Tobias of the University of Richmond School of Law, who studies the federal judicial appointment process. Previously, there was a 6-6 split among active judges, he said.
“It means that, on three-judge panels, you’re more likely to get two Republican-appointed judges. When they go en banc, the majority would be Republican appointees,” Tobias said.
Three-judge panels hear most appeals, although parties can ask the full – or en banc – court to overrule the smaller panels. The next appellate level after that is the U.S. Supreme Court.
“They’re both very conservative – I don’t think there’s much question about that,” Tobias said of Lagoa and Luck. Both belong to the Federalist Society, the conservative-libertarian organization that opposes regulation, affirmative action, marriage equality, and other liberal priorities and supports expansion of presidential authority, state support for religious institutions, and access to the courts.
Lagoa became the 164th federal judge confirmed under President Trump, and the 48th confirmed to an appellate bench, Sen. John Thune, a South Dakota Republican, said on the Senate floor. He accused Senate Democrats of subjecting an unprecedented number of judicial appointees to procedural delays “for no other reason than the fact that they were nominated by this president.”
Thune asserted that 75 percent of Trump’s nominees have been subjected to the cloture process, which imposes 30-day limits on debate, compared to 3 percent at this point during President Obama’s first term.
He did not mention that Democrats controlled the Senate for the first two years of Obama’s presidency. Once Republicans took control, they blocked 79 Obama nominees, compared to 68 nominated by presidents of both major parties between 1967 and 2009, according to a Politifact analysis.
Then there’s GOP senator’s refusal even to consider Obama’s March 2016 nomination of Merrick Garland to fill the late Justice Antonin Scalia’s seat. The party held the seat open until Trump assumed office.
Like his political sponsor Trump, DeSantis relies on the Federalist Society to headhunt potential jurists and JNC members. At the federal level, Trump has frozen the American Bar Association out of its traditional role in evaluating nominees. Although no longer formally involved, that organization has declared six Trump appointees not well-qualified. Lagoa and Luck both have drawn wide support within the legal community, however.
The governor, a Harvard-trained lawyer, has said that he looks for jurists who respect the proper role of judges and defer to legislative authority – and not what DeSantis considers judicial “activists.”
Governors appoint nine members to each of the JNCs for the Supreme Court and Florida’s five intermediate courts of appeal – although the Florida Bar suggests nominees for four of the nine seats.
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 hailed from the Third Appellate District, covering Miami-Dade and Monroe counties. With their departure, it became the only district not represented on the court.
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