Update from the Florida Supreme Court: The Governor Has To Make A New Selection By Monday

"We hold that the constitution requires the Governor immediately to appoint and commission a constitutionally eligible nominee from among the seven remaining candidates already certified by the judicial nominating commission."

|The Volokh Conspiracy |

Two weeks ago, the Florida Supreme Court ruled that the Governor of Florida made an illegal appointment to that court. Today, SCOFLA (as it is known) has ordered the Governor to make a new appointment by Monday. Here is a brief summary of the dispute:

The essentials of this case are straightforward. The resignation of former Justice Robert Luck created a vacancy in office; the constitution gave the Governor sixty days from January 23, 2020, to fill the vacancy by making an appointment from a list of certified nominees; and, at the time of the appointment, the appointee necessarily needed to be constitutionally eligible for the office being filled. Not having been a member of the Florida Bar for ten years, Judge Renatha Francis was constitutionally ineligible for the office of justice of the supreme court on the expiration of the constitution's sixty-day deadline. And Judge Francis remains constitutionally ineligible now. Art. V, §§ 8, 11, Fla. Const.

The constitution's sixty-day deadline to fill this vacancy in office expired many months ago. Yet the Governor has not satisfied his legal obligation to fill the vacancy by making a constitutionally valid appointment. This is true if one views the Governor as having made a null appointment on May 26 (because Judge Francis was and is constitutionally ineligible). It is also true if, as the Governor belatedly suggests in his response to the amended petition, the May 26 "appointment" was a mere "announcement" and not an appointment at all.1 Either approach leads to the same conclusion: the Governor has not complied with the constitution's clear commands.

The Court defends its "formalism" with a citation to Justice Breyer. Just kidding. This is the sort of decision that would make Justice Breyer spin around in circles. Instead, they cite Justice Scalia.

The constitution's ten-year Bar membership requirement and sixty-day appointment deadline are bright-line textual mandates that impose rules rather than standards and prioritize certainty over discretion. To some, enforcing rules like these might seem needlessly formalistic when the result is to preclude the appointment of an otherwise qualified candidate. But "formalism," as Justice Scalia observed, "is what makes a government a government of laws and not of men." Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 25 (rev. ed. 2018).

Yet, the Court avoids an actual confrontation with the executive. They do not issue the writ. They merely hope the Governor will follow their ruling, on his own accord.

The Governor must fully comply with this order no later than noon on Monday, September 14, 2020. Because we believe the Governor will do so, we grant the amended petition for a writ of mandamus but withhold issuance of the writ. No motion for rehearing or clarification will be entertained by this Court.

Here, SCOFLA follows in the footsteps of Roger Taney in Ex Parte Merryman. He  merely sent Lincoln a copy of the opinion, hoping the President would comply. Of course, the Governor of Florida is a party to this case; Lincoln was not a party to Merryman. (See Seth Barrett Tillman's excellent article).

Imagine if the federal Constitution had a similar provision, and the President was required to select a Supreme Court justice from an approved list within 60 days after a vacancy arose. Justice Garland, anyone?

H/T Michael Masinter

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  1. Garland WAS selected by a President. The whole Senate confirmation thing is where there is no Florida analogue.

    1. That’s correct. The Constitution should say that the Senate must confirm within 60 days, or the nomination+confirmation process must finish within 60 days. Just imagine the infighting over that. LOL

      1. Didn’t the Senate advise and refuse consent on Garland within 60 days? I’m pretty sure the Senate told Obama sooner than 60 days they would not be voting on Garland.

        1. “Didn’t the Senate advise and refuse consent on Garland within 60 days?”

          this is a laughable claim.

          Mitch declared a rule that Presidents are not allowed to select Supreme Court appointments in the last year of their term. It is, of course, unclear as to whether or not Mitch would enforce this “rule” against a President of his own political party.

          what you need is a Senate rule change.

          If the party that controls the Senate is different from the President’s party, then failure to hold a confirmation vote functions as an automatic approval of confirmation.

          If the party that controls the Senate is the same as the party of the President, then failure to hold a confirmation vote functions as a denial of confirmation.

          If you wanna block a confirmation, get 50 other Senators to agree to block the confirmation.

          1. t is, of course, unclear as to whether or not Mitch would enforce this “rule” against a President of his own political party.

            I can’t imagine anyone thinks it is not perfectly clear.

            1. The long-range solution to the Garland problem is for the Senate to amend its rules to require a vote on any SCOTUS nomination submitted to it by the President within 60 days, unless a large supermajority votes to extend time. A constitutional amendment is a theoretical alternative but is probably impractical. I sympathize with the Dems’ outrage that Mitch refused to submit Garland’s nomination for a vote, but that’s over and they should move on. I had hoped that calmer heads in the Senate would propose such an amendment to the rules, but at the moment things are way too polarized for that to happen. If things ever return to the former level of civility the change might be possible.

              1. ” I sympathize with the Dems’ outrage that Mitch refused to submit Garland’s nomination for a vote, but that’s over and they should move on.”

                I’m not a Democrat and I’m outraged that this particular gambit worked out for Mitch. The problem with changing the Senate rules is that those rules could be changed back, or potentially ignored if convenient. (who would enforce it?) A constitutional amendment could make it justiciable.

              2. The long-range solution to the Garland problem is for the Senate to amend its rules to require a vote on any SCOTUS nomination submitted to it by the President within 60 days, unless a large supermajority votes to extend time. A constitutional amendment is a theoretical alternative but is probably impractical.

                I tread cautiously, as finding myself even in partial agreement with young Pollock immediately induces a lack of confidence in my own opinion…..but I think you have missed the point of Harry Reid’s nuclear option.

                The nuclear option was not to get rid of the filibuster for all non-SCOTUS appointments, but to override, with a simple majority, the Senate rule requiring a supermajority for changing Senate rules. The bomb having been exploded, there is no way back. Any Senate majority can change the rules at its convenience, and now has precedent to do it.

                Hence if you want to force a Senate majority to do something against its will, you’re going to have to put it in the Constitution.

                Indeed, even if you do put it in the Constitution, you’re going to have to word it carefully so the change you want is self-executing. Otherwise you’re going to risk SCOTUS saying “political question.”

                So for example imagine a Presidential election in which the House and Senate do not agree on the count of Electoral Votes. The 12th Amendement provides :

                “and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. ”

                Suppose the Green team has a majority in the HoR so the Speaker is a Greenie. But the Pink team has a majority in, say, 28 of the State delegations to the HoR, so that if a vote is taken, the Pink team will win. But the Green Speaker simply refuses to hold the ballot. Despite the Constitution injunction to do so “immediately.”

                What odds on SCOTUS ordering the Greenie Speaker to hold the ballot immediately ? Rather modest I should think.

            2. “I can’t imagine anyone thinks it is not perfectly clear.”

              I know which way I would bet. Which is not the same thing. With any luck, the next time Mitch is presented by a problem of this nature, it will be as a member of the Senate minority. Ideally, the next opening on the Supreme Court wouldn’t affect Mitch much, he’d be reading about it in the newspaper he brought with him to the unemployment office.

      2. ” The Constitution should say that the Senate must confirm within 60 days, the nomination+confirmation process must finish within 60 days. Just imagine the infighting over that.”

        Or else what? And what do you do if the political party the controls the Senate wants to confirm a controversial candidate without making their members vote on the record. Obstructionism doesn’t always come from the minority.

  2. Their acronym is SCOFLA?

    The Florida bar must make constant jokes about this.

    There used to be a federal judge in NY named Judge Lawless. Go figure.

    1. When it was still a thing I kept hearing one of the officer names on Live PD as “Deputy Lawless” (not sure if it’s actually right as I am blind and so cannot read any captions they may have had)

    2. I’ve been a member of the Florida Bar for 20 years. Up until a couple of weeks ago, I had never heard of the Florida Supreme Court being referred to as “SCOFLA” (when an abbreviation was truly necessary, it had always been “FSC”). My hunch is some journalist simply christened the court without its blessing.

  3. This is all very well, but what is actually going on ?

    There must be some reason why the Florida Judicial Nominating Commission nominated an unqualified candidate, some reason why the Governor appointed her, and some reason why the Governor seems so reluctant to pick someone else from the list that he keeps going back to court.

    Presumably the reason is politics. So what is it ?

    Is the JNC somehow in the effective control of Florida Democrats, so that their list is composed of six Maoists and one ineligible Republican ? And if so, how does this come to be, since the Rs have mostly controlled Florida politics for a while ? This can’t still be a legacy of Charlie Crist. Or is there some huge fissure in Florida GOP politics ?

    Never mind the legal jollities and tell us what’s really going on.

    1. “Never mind the legal jollities”

      One man’s legal jollities is another man’s bread and butter.

    2. DeSantis is trying to appoint a Black justice, the Florida Supreme Court having been lacking one for two years. The judicial nominating commission for the SC (it has its own) certified nine candidates for two positions, but only one, Judge Francis, is Black. She will become eligible on Sept. 24, and apparently the governor is doggedly sticking to his guns.
      I haven’t found answers to the obvious followon questions: Why did the commission only certify one Black candidate, and an ineligible one at that?

      1. Because they hate black people, and so only nominated an ineligible one. And the SCOFLA followed suit in keeping out a black justice.

        1. We’ve finally found some of that systemic racism on display.

          Of course it’s a bunch of Democrats.

          1. Nice try.

            Every single member of the Flordia Supreme Court was appointed by a Republican governor. Every one that has political affiliation listed on their Wikipedia page is a Republican.

            1. I suspect the real problem is that the Governor, like all Governors from both parties, wants to appoint a justice who shares his general political philosophies. Since 90% of Blacks are Democrats, there are probably relatively few Black Republicans on the Florida Court of Appeals. Is there anyone from Florida who could clarify this?

              1. So pick a candidate who isn’t on the Florida Court of Appeals. Or is your theory that they’ve latched on to the only black Republican lawyer in all of Florida?

    3. The governor’s legal argument was that the 10-year rule applies at time of taking office, not at the time of appointment. You could give him the benefit of the doubt and assume he sincerely believed this and simply failed to predict how the supreme court would interpret the language.

      You might give him, shall we say, qualified immunity. I think this sort of case, where the courts interpret an arguably ambiguous legal provision for the first time, better reflects the sort of circumstances qualified immunity was intended to address than many recent cases involving lawsuits against police officers and prison officials.

      1. “10-year rule applies at time of taking office, not at the time of appointment”

        Like every other eligibility rule. You can run for the US Senate and be elected before 30 so long as you take the oath once you turn 30 {See Rush Holt in 1934] Joe Biden was not quite 30 when he won either.

        Justin Walker was appointed earlier in 2020 and confirmed this summer to fill a vacancy that did not occur until September 1.

      2. I think the weakness in this argument is that there’s actually no good reason for the delay between the appointment and her taking office. Unlike in the case of an election for a Senator or President where there’s a set swearing-in date in January, or even a federal judicial vacancy coming up on a specified date, the issue here seems to be that Francis has just said “I’m happy to take the job; I’ll start on September 24th which happens to be the first day that I’m eligible”.

        Assuming that the point of the time limit in the Constitution is to ensure a speedy replacement of justices, this approach seems contrary to the purpose. Taken to the extreme, why couldn’t you just nominate someone who’s not been admitted to the bar at all and just announce that they won’t actually start the job until ten years from when they do?

    4. She is black and one of 4 women on the list. She is or at least was a member of the Federalist Society. He probably couldn’t pass up the opportunity to appoint a female black conservative, although how conservative she is is purely speculation on my part.

    5. “Never mind the legal jollities and tell us what’s really going on.”

      I waited to see whether anyone would answer correctly, but nobody has, so here’s the answer.

      Governor DeSantis used his power to control the makeup of the JNC to set up Francis for the appointment. To do so, the JNC had to provide cover by certifying her as the only Black applicant despite others who had far superior qualifications. Once the JNC certified the finalists, with Francis as the only Black candidate, DeSantis could claim that he wanted to appoint a Black justice and chose her for that reason. But the reality is quite different — the Governor and his chosen JNC members manipulated the process to produce a specific result despite the plain text of the Florida constitution. For more, see this story: https://www.tampabay.com/florida-politics/buzz/2020/08/14/how-did-renatha-francis-ascend-to-floridas-highest-court/

      I note in closing that in her appearance before the JNC, Judge Francis stated her commitment to “textualism” and “plain meaning; clearly she does not suffer from irony deficiency anemia.

  4. “Not having been a member of the Florida Bar for ten years, Judge Renatha Francis was constitutionally ineligible for the office of justice of the supreme court on the expiration of the constitution’s sixty-day deadline.”

    Wonder how, and why, that got into the Florida Constitution.

    1. Also, this cite “Art. V, §§ 8, 11, Fla. Const.”, makes no mention of the 10 year requirement.

      1. Article V Judiciary
        Section 8

        …”No person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida.”…

        Section 11 Vacancies

        (c) The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to the governor.

        Copied from https://www.flsenate.gov/Laws/Constitution#A5S08

      2. “Also, this cite “Art. V, §§ 8, 11, Fla. Const.”, makes no mention of the 10 year requirement.”

        Obviously, you know more about the Florida Constitution than the justices of the Florida Supreme Court or their clerks.

    2. “Wonder how, and why, that got into the Florida Constitution.”

      Seems to be reasonably targeted at Reconstruction-era cartpetbagging. Only people who’ve lived in Florida can or should be making important decisions about Florida law. So, we put in a requirement for X years of residency, and specify that they be spent practicing law as cover.

  5. “John Marshall has made his decision, now let’s see him enforce it.”

    — President Andrew Jackson

  6. So the Court is exercising a veto on a new colleague.

    Interesting meetings once she gets appointed on September 24.

    1. That is interesting…if DeSantis doesn’t “comply” then what remedy could the Court impose?

      I assume a handshake deal between DeSantis and a remaining candidate to pitch-hit would be invalid. But if a candidate came forward voluntarily to do so, then that would be fine.

      1. “That is interesting…if DeSantis doesn’t “comply” then what remedy could the Court impose?”

        I imagine they could try declaring that DeSantis has de facto resigned. And see if anyone down the line of succession might snap at the bait.

        1. “De Facto” means in reality or in fact. So, the FL supreme court could make a factual determination that DeSantis has resigned. I’m mean I suppose anything is possible, they could declare that pigs can fly, but its chances are very close to 0. It would be one thing if DeSantis had not been in public for multiple weeks and ignored all gov emails, calls, texts, etc. But the fact that DeSantis has taken other official actions inconsistent with the factual imputation that he’s resigned makes it much less plausible.

          I think Bob suggested correctly that the Court has no remedy for not following their directive. I would add that declaring DeSantis resigned seems like more of a violation of the separation of powers than say the supreme court choosing a replacement on their own initiative.

  7. Why the cheap shot at Justice Breyer? (And I’m no fan of his.) Is there any reason to believe he would not have decided this case the same way, and for the same reasons? This 10-year requirement is about as clear as the provision that the President must be at least 35 years of age. Does anyone think that Justice Breyer would vote that a person who was 34 years old on Inauguration Day was ineligible to serve as President. (Maybe there’s an argument that the (presumably older) VP could serve as President and, if the President-elect turned 35 a few days later, he (or she) could be sworn in then. But that leads to thorny issues like how far short of 35 the President-elect can be and how long can the country wait while the VP presides.)

    1. To make it parallel, you would have to have a candidate that was 34 on Election Day but then turned 35 before the day he was to take office on Jan. 20.

      1. I think that would be an easy case. Whatever a candidate’s age when elected, the age limitation is on who can can “serve” as President, which cannot occur before inauguration. If memory serves, Joe Biden was elected to the Senate when he was too young, but had reached the required age when he was sworn in.

    2. ” that leads to thorny issues like how far short of 35 the President-elect can be and how long can the country wait while the VP presides.)”

      In theory, if the elected President is not qualified to serve by reason of age, the Succession then promotes the elected VP to the Presidency. The thorny part is getting back to putting the guy who was actually elected as President into the Presidency, not the VP serving while s/he is Constitutionally underage.

      1. The Twentieth Amendment says the VP serves temporarily: “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified”

        1. Yeah, but the Presidential Succession Act sits on top of that. Are we expecting the Congress to amend it before we need it?

    3. Why the cheap shot at Justice Breyer? (And I’m no fan of his.) Is there any reason to believe he would not have decided this case the same way, and for the same reasons?

      It would depend on what he wanted the answer to be. Assuming he wanted the nominee to be seated he would stare at the law :

      …”No person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida.”…

      and conclude something along lines of – Florida bar membership is a year by year thing, consequently for an appointment in 2020, we need to discover whether the nominee was a bar member in 2020, 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011. She first joined on 28 Oct 2011. Elapsed time as a bar member doesn’t amount to ten years but, in context, that’s not the test. She’s been a member of the Florida bar for ten membership years. She’s good to go.

  8. Left out the “not” between “would” and “vote.” There really ought to be an edit function.

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