‘I Called The President’: A Look At The Differing Processes Of Appointing Federal Vs. State Judg

Sep 21, 2020
Originally published on September 18, 2020 4:56 pm

Governor Ron DeSantis has filled the remaining vacancy on Florida’s Supreme Court, announcing his new pick this week. The move followed a legal push-and-pull, and the governor’s initial choice getting rejected.

DeSantis has now launched an effort to get his initial pick onto a federal bench.

During a media appearance Monday, DeSantis was flanked by his new pick for the Florida Supreme Court, and the previous pick who was rejected by the court itself.

Former appeals court judge Jamie Grosshans will fill the vacant seat on the Supreme Court that was held by Robert Luck, before President Donald Trump recently appointed him to a federal appeals court.

“I recognize that as I stand here, ready to join the Florida Supreme Court as the fifth woman, I stand on the shoulders of champions who have fought for equality and the right of women to lend their voices to leadership in this great state,” Grosshans said in accepting her new job.

She will be the only woman serving on the state’s highest court.

DeSantis, now, is trying to get his first choice for the vacancy, circuit judge Renatha Francis, onto a federal bench – with the help of the man who propelled the governor into office, Trump.

Francis’ appointment was rejected by the court because she hadn’t met the requirement of being a member of the Florida Bar for at least 10 years.

“I did not feel that she had been treated very well throughout this process,” DeSantis told reporters Monday. “And so, I picked up the phone and I called the president of the United States. I told the president what had happened, I told him that we have a great judge down here in Florida who was going to be on the Supreme Court, and while that didn’t work out, I think she would make a great federal judge in the Southern District of Florida.

“The president was very receptive to that.”

DeSantis told press his request is “actively under consideration.”

The case of Francis’ rejection has raised the question – if a judge didn’t make it on to a state bench, are they qualified for a federal one? And is it as simple as the governor putting in a call to the president?

Anne Mullins, a law professor at Stetson University, explains the two nominating processes are quite different.

“The federal system and the Florida system really are different in how they source the names, how you get into the pipeline to be considered for a judgeship,” Mullins told WFSU this week.

Here’s how she says that works:

“Officially, the constitutional process in the federal government is simply appointment by the president and confirmation by the senate,” but, Mullins says in practice, there’s a bit more to it. “Now the practice, though, the practice is that the senator from the home state of the appointment, shares with the president suggestions of nominations.”

At the state level, Florida follows what’s called an assisted appointment process.

“It’s a joint undertaking between a commission and the executive, here, the governor,” Mullins explained.

The ‘commission’ Mullins references is the state’s Judicial Nominating Commission, which presents the governor with at least three, and no more than six, potential nominees.

“And the purpose of the assisted appointment process is to take the partisan politics out of judicial nomination,” she added.

But Mullins says both processes, state and federal, are nevertheless inherently political. She says that’s evident by the pattern of “preferred qualifications”

“The one requisite preferred qualification is, same political party or judicial ideology as the appointing executive,” Mullins said.

Is one post – federal vs. state – considered higher, or more important than the other? Mullins says, there’s no right answer. The nature of the work they perform, and the people to whom they are accountable, differ:

“My suspicion is that, among the public in general, I suspect there’s probably a perception that the federal bench might be sort of a ‘higher post’ But in reality, the Florida supreme court is the court of last resort in this jurisdiction,” Mullins said. “The decisions coming out of the Florida Supreme Court probably have a lot more affect than the decisions coming out of the nationwide federal courts, of course, but also the 11th Circuit Court of Appeals, which is where justices Luck and Lagoa now serve.”

The state considers criteria like age, time in practice, and whether one is a registered voter for judgeships. So, even though Francis didn’t meet the qualification of a decade as a member of the bar, is she qualified for a federal bench?

The answer is, well, yes.

“There are no formal qualifications to serve as an Article 3 judge in the federal court system. There’s only one requirement for judges in the U.S. Constitution – that’s for our Article 1 judges, so those serving as bankruptcy judges and magistrate judges, they have to be lawyers. That is as far as we go in the federal system,” Mullins said.

Various public interest groups, like the American Bar Association, do review and vet federal judicial nominees, considering things like experience.

Francis, on Monday, said she will be ready to take the federal post if called on:

“If I were to be selected to be nominated for this position and to go through a successful confirmation, I can promise you that I would faithfully adhere to the text of the constitution,” she told Floridians during the televised press conference.

Another of DeSantis’ previous appointees, Barbara Lagoa, also was moved up to a federal appeals court, and was replaced by Justice John Couriel in June.

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