Gov. DeSantis reshaped Florida’s appeals courts; it seems to be working out for him

When he loses at trial, he often finds vindication in higher courts

By: - September 20, 2021 7:00 am

The Florida Supreme Court building. Credit: Michael Moline

As Gov. Ron DeSantis knows, when you get into a legal beef it helps to have appointed three members of the court that will hear the appeal. And to have placed three more jurists on the court above that one.

That’s the situation at Florida’s First District Court of Appeal, which sits in Tallahassee and hears disputes involving state government. Republicans have controlled the governor’s office for so long that not a single judge on the court was appointed by a Democrat.

Similarly, at the Florida Supreme Court, since taking office in January 2019 DeSantis has seated three Federalist Society-affiliated justices, giving it a relentlessly conservative cast that has paid off for the governor more than once.

Prospects in federal court are peachy, too: Former President Donald Trump shifted the U.S. Circuit Court of Appeal for the Eleventh Circuit and U.S. Supreme Court solidly to the right.

So, when U.S. District Judge Mark Walker in Tallahassee blocked enforcement of HB 1, the anti-riot law DeSantis signed this year, pending a trial on the merits of the law that’s scheduled to open in the spring, the governor conceded that he’s accustomed to losing at the trial level.

“We will win out on appeal, I guarantee you we will win that on appeal. Just like we’ll win the parents’ rights one on appeal, just like we won almost anything out of Tallahassee on appeal, that’s just kind of the way the cookie crumbles,” DeSantis told reporters on Sept. 10., following the ruling.

That second case involved Leon County Circuit Judge John Cooper’s order blocking enforcement of DeSantis’ hard line against face mask mandates in public schools. Sure enough, a three-judge panel of the First Circuit (including A.S. Tanenbaum, appointed by DeSantis in 2019) on Sept. 10 lifted Cooper’s stay pending further proceedings.

Judges are supposed to be impartial — as Chief Justice John Roberts famously said during his 2005 confirmation hearings, “It’s my job to call balls and strikes, and not to pitch or bat.” More recently, Justice Amy Coney Barrett told an audience in Kentucky last week that the U.S. Supreme Court “is not comprised of a bunch of partisan hacks.”

DeSantis has declared that he looks for judges who will interpret the law and Constitution, not make law from the bench. But there’s more than one way to skin a legal text, and of course judges view cases through their own philosophical lenses.

The question is whether the conservative monoculture DeSantis and his predecessors have built within the judicial branch is willing to check excesses committed by the executive and legislative branches, which the Republican Party has dominated for decades.

Florida State Rep. Fentrice Driskell. Credit: Florida House of Representatives.

“It gives that appearance of the courts being far less independent. And that’s really problematic, right? That undermines the public’s trust and confidence in the courts,” Fentrice Driskell of Tampa, a civil litigator and the ranking Democrat on the state House Judiciary Committee, said in a telephone interview.

“If you have a governor who is appointing judges who reflect his same judicial philosophy, of course you’re going to get results that favor the governor. They think the same way,” she said.

“Far be it from me to ever impugn the integrity of a jurist. I think what I’m trying to say is, we’ve got a process that is flawed and is going to continue to reach these types of results because we’re focusing on the wrong factors when we appoint people.”

The Federalist Society

The governor takes his cues on appointments from the Federalist Society for Law and Public Policy Studies, which grooms young conservatives for places in the legal establishment, including the courts. DeSantis, himself associated with the organization, also places Federalists on the judicial nominating commissions that recommend jurists for state appellate courts.

It’s maybe not fair to say the First DCA was outright biased toward DeSantis when it lifted Leon County Circuit Judge John Cooper’s block on enforcement on the administration’s efforts to punish county school boards that imposed strict mask mandates — again, pending a trial on the merits.

But Republican governors including DeSantis wouldn’t have appointed the court’s members if they hadn’t shared their judicial philosophies.

DeSantis “did not say to the judicial nominating commissions, ‘Send me the three best people and I’ll support somebody from that.’ He made it very clear by only appointing judges who had specific credentials and by changing the judicial nominating commissions so that they would send him the kind of candidates that he was looking for,” Bob Jarvis, a constitutional law professor at Nova Southeastern University’s Shepard Broad College of Law, said in a telephone interview.

“There’s no ideological diversity at this point. We have the most conservative Florida Supreme Court that we’ve had in decades. There is no judicial independence. They’re just running in lockstep with the governor,” Jarvis said.

Regarding Walker’s ruling, HB 1 was DeSantis’ top priority during the annual legislative session last spring, an ardently pro-police pushback to last summer’s wave of protests against police brutality.

The governor claimed the stiffer penalties for people participating in violent protest was content-neutral, but Walker accepted civil rights groups’ claims that it had already chilled their activities. He ruled the law was so sweeping that it could punish even perfectly legal activities.

DeSantis has promised an appeal to the U.S. Court of Appeals for the Eleventh Circuit, which has stuck up for him before, most notably in September 2020, when the full court overruled a three-judge panel that had invalidated a state law, which DeSantis supported, erecting financial barriers to felons seeking re-enfranchisement under 2018’s Amendment 4.

Two Florida jurists — Barbara Lagoa and Robert Luck, whom the governor had placed on the Florida Supreme Court before their elevation to the federal bench — declined to recuse even though they’d been involved in a related case while still on the state court. Their votes gave DeSantis his margin of victory.

Renatha Francis accepts her appointment to the Florida Supreme Court on May 26, 2020, but never took the seat. Credit: Screenshot

Appeals haven’t always gone the governor’s way. Also in September 2020, the Florida Supreme Court rejected DeSantis’ attempt to name Palm Beach County Circuit appellate Judge Renatha Franklin as a justice because she hadn’t been a member of the Florida Bar for the required 10 years. Even justices the governor had placed on the high court ruled against him. Francis was Black, but none of the available replacements were, which means the court lacks a Black justice now.

On the other hand, the justices have proven more than willing to reverse even recent precedents handed down by their more liberal forebears.

“A lot of commentators would tell you that the Florida Supreme Court is one of the more conservative in the country,” Max Gaston, staff attorney for the ACLU of Florida, which is helping to litigate the riot law case, said in a telephone interview.

“Additionally, I would say that there is a notable absence of representation of Black justices on the high court, which is for its own reasons troubling,” he added.

“Justice is supposed to be impartial. That’s their call and their duty, and I certainly don’t want to suggest otherwise. But I do believe that, when you’re confronted with a conservative bench, oftentimes it can lead to an uphill climb for plaintiffs organizations like ours.”

White judges

Sean Shaw — a former state House member and unsuccessful candidate for Attorney General — said he is “disgusted and appalled” that the state’s highest court lacks a single black justice. His father, the late Leander J. Shaw Jr., was one of four Black justices to serve on the court in its history. The last was Peggy Quince, one of three justices who reached the mandatory retirement age as DeSantis entered office in 2019.

The only Black person serving on the First DCA is Joseph Lewis Jr., appointed by Jeb Bush in 2001.

As long as Republicans keep their hammerlock on state government, Democrats are powerless to reverse the trend, Shaw conceded.

“Unfortunately, elections have consequences, and I am aware of that. That means that the victors of those elections are going to be able to appoint judges that are more conservative than I would like,” he said in a telephone interview.

Sean Shaw, attorney and former lawmaker. Credit: Wikipedia.

Still: “The Florida Supreme Court has no Black justices. The appellate courts are lacking in the appropriate Black representation. That is something that is just totally inappropriate and not correct, in my opinion.”

The Phoenix asked DeSantis Press Secretary Christina Pushaw whether the governor is concerned about the lack of Black appellate judges, but she hasn’t responded yet.

Rep. Driskell filed legislation last year to reduce governors’ power to appoint members of the judicial nominating commissions in the interest of diversifying the panels. Under her bill, three appointments would go to the governor, three to the Florida Bar, and those appointees would pick another three. No more than five could belong to a single political party. It received not a single committee hearing.

Under existing law, governors get five JNC appointments and the Bar nominates another four whom the governor is free to appoint or reject.

During Gov. Rick Scott’s administration, Driskell served on the Bar committee that selects these nominees. She said Scott sent his general counsel to committee meetings to press for nominees who shared the governor’s conservative philosophy.

“There’s nothing in the statutes that says the governor gets to appoint someone because they share his political philosophy,” Driskell said. Instead, it calls for racial, ethnic, gender, and geographic diversity.

“It talks about being fair and balanced,” Driskell said.

None of this bodes well for the redistricting process, whereby the Legislature redraws legislative and congressional district boundaries every 10 years. That process is just getting underway following the latest U.S. Census.  Last time, the courts strictly enforced Florida’s voter-approved Fair Districts amendments, which forbade drawing districts to benefit any political party. This time, whether they’ll be more deferential maps favoring Republicans who’ll control the process is an open question.

“I fear that we’re in a position where, because the judicial selection process has become so politicized, that there might be a sense of defeatism that the public may have with respect to trusting that the courts can help make sure that these districts are fair in the event that the Legislature gets it wrong,” Driskell said.

“The judiciary is a co-equal branch of government. It really is the check and balance on us all. And so, when people lose faith in that, you can see how it undermines faith in our democracy,” she said.

Track record

Notwithstanding the governor’s faith that state and federal appeal courts will see things his way, DeSantis doesn’t always win at the trial level, where state judges stand for election but governors are allowed to fill vacancies; presidents appoint U.S. district judges.

Here’s a rundown on the governor’s recent litigation history:

School masks: The appeal of Judge Cooper’s ruling is still before the First District, although attorneys for the parents suing for tougher mask requirements have asked the court to pass the case to the Florida Supreme Court.

“Without a definitive and immediate resolution by the Florida Supreme Court, local school boards, students, teachers, and parents will be mired in uncertainty,” they wrote in a legal motion filed late Friday.

“Local school boards require certainty to be able to impose mask mandates with no parental opt-out without being subject to punishment by [the administration]. In the meantime, [the parents’] children are faced with the increased risk of exposure to the Delta variant in attending school in-person with no reasonable alternative and are being subjected to continuing constitutional violations.”

In a victory for DeSantis in a similar suit, raising disabilities-related claims on behalf of disabled public school kids, U.D. District Judge Judge Michael Moore in Miami on Wednesday refused to enjoin the governor’s policy.

He concluded that federal law obliges the parents to seek accommodations to protect their children individually, through an administrative process. The case is still pending, but Moore ruled the parents were unlikely to prevail on their claims. The administration (names defendants include DeSantis, the Department of Education, and Education Commissioner Richard Corcoran) has filed a motion to throw the case out of court.

Additionally, a number of school districts with strict mask mandates have filed administrative claims against the administration.

Royal Caribbean’s Grandeur of the Sea, leaving the Port of Key West. Credit: Steve Apps

Cruise ships: A federal judge in Tampa in June upheld the administration’s challenge to federal guidelines requiring cruise lines to demand that passengers be vaccinated against COVID-19. U.S. District Judge Steven Merryday ruled that the U.S. Centers for Disease Control and Prevention exceeded its authority in issue the sailing guidelines.

A three-judge Eleventh Circuit panel initially disagreed with Merryday but in an astounding twist changed its mind and allowed his injunction against the CDC to stand. The panel never provided a full explanation, but members might have wanted to avoid having the full court take up the case or giving the Supreme Court, which Attorney General Ashley Moody had asked to review the matter, a chance to set a national precedent.

However, in a second case filed by Norwegian Cruise Line Holdings, U.S. District Judge Kathleen Williams in Miami in August blocked the state from forbidding ships from demanding proof that passengers have been vaccinated against COVID-19. Williams concluded that Norwegian was likely to succeed with legal claims alleging violations of its First Amendment rights and that the state law would impose a substantial undue burden on its right to operate.

Citizens’ initiatives: A federal court in July blocked implementation of a new Florida law capping campaign contributions that support citizen-initiated efforts to amend the Florida Constitution. U.S. District Judge Allen Windsor ruled that the cap could cripple citizens’ ability to exercise their First Amendment Rights by making it difficult or impossible to collect enough signatures to place proposed constitutional amendment on the ballot. The state has not filed an appeal.

Social media: Also in July, U.S. District Judge Robert Hinkle blocked enforcement of a new law, pushed by DeSantis, allowing big fines for social media platforms deemed to have discriminated against users including candidates for office based on their political positions. He called the law a clear violation of the First Amendment. It was another of DeSantis’ priorities during the spring legislative session. The state has filed an appeal with the 11th Circuit.

Correction: An earlier version of this story misreported Renatha Francis’ current job. She sits on the West Palm Beach County Circuit Court.

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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.