SHIFTING RIGHT (PART 1)

Filed under FLORIDA, FRONT PAGE, NEWS, POLITICS

Gov. Rick Scott is quietly reshaping Florida’s courts

COMPILED FROM STAFF AND WIRE REPORTS

TALLAHASSEE – As speculation turns to Gov. Rick Scott’s first Florida Supreme Court appointment, with the upcoming retirement of Justice James E.C. Perry, a more dramatic makeover of the state’s judiciary system has gone almost unnoticed.

Justice James E.C. Perry, one of only four Black Florida Supreme Court justices in the state’s history, must retire from the court after a 16-year tenure. (COURTESY OF THE FLORIDA SUPREME COURT)

Justice James E.C. Perry, one of only four Black Florida Supreme Court justices in the state’s history, must retire from the court after a 16-year tenure.
(COURTESY OF THE FLORIDA SUPREME COURT)

Perry announced his retirement earlier this month, opening an opportunity for Scott to fill his first state supreme court vacancy.

Florida’s mandatory retirement age for judges is 70. State law allows judges to finish their judicial terms if they reach the age limit toward the end of term, thus allowing Perry to turn 72 while still on the state’s highest court until his term ends Dec. 30.

Appeal courts packed
All of the state’s five district courts of appeal now have Republican-appointed majorities. Three have benches that are entirely comprised of judges named by governors who were elected as Republicans.

Scott alone has appointed nine of the 15 judges on the First District Court of Appeal, which is based in Tallahassee and hears most of the cases challenging the authority of the governor and the Legislature.

And with his choices, Scott has at times overtly attempted to shape a more conservative bench – aided, critics say, by changes to the process for naming judges approved during Gov. Jeb Bush’s time in office – and will leave a judicial legacy that far outlasts his tenure.

Even if Perry’s replacement is the only justice the current governor installs on the Supreme Court, Scott’s legal legacy could be in place for a generation.

‘The rule of law’
In February 2011, a little more than a month after he had been sworn in as governor, Scott made his first appeals-court appointment. He tapped Burton Conner to serve on the Fourth District Court of Appeal, which includes Broward, Indian River, Martin, Okeechobee, Palm Beach and St. Lucie counties.

“Judge Conner represents the values and judicial conservatism I am looking for in our judges,” Scott said in a statement announcing the appointment. “He has a great reputation in the community and a great law-and-order demeanor. Primarily a criminal court judge for most of the past 15 years, he has demonstrated a judicial philosophy that makes him unlikely to overstep the role of the judiciary.”

Some in the legal community were taken aback by Scott’s explanation for why he chose Conner.

‘Has an agenda’
“What it says to me is, the governor has an agenda with judges. It’s unsettling,” former Judge Gary Farmer, whose exit created the vacancy, told The Palm Beach Post. Farmer’s criticism was not about Conner, whom he recommended, but Scott’s mentioning the new judge’s political bent.

Scott would rarely again so bluntly link his judicial appointments to a particular philosophy. But he would use phrases popular in conservative legal circles, referring again and again to “the rule of law,” judicial restraint and a judge understanding the proper role of the branches of government.

Few attorneys, especially those who go before appellate courts, are willing to publicly discuss the political leanings of judges. But some, particularly among those whose areas of expertise might not be in favor with the current governor, privately concede that there has been a shift in the direction of the district courts of appeal – some of it preceding Scott.

Judicial litmus test?
Those attorneys’ complaints sometimes come around to the Federalist Society, a prominent conservative legal group that formed in 1982 by students at three of America’s elite law schools: Harvard, Yale, and the University of Chicago.

According to its website, “the Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians dedicated to reforming the current legal order.” The Federalist Society also mentions “the rule of law” in its statement of purpose.

“From a small student organization, in 30 years the Federalist Society has expanded to include many of the leading conservative lawyers in the country. The society has come to be known for featuring participants who believe that the Constitution should be interpreted using ‘originalism,’ a doctrine stating that the basic meaning of the Constitution was set at the time the document was created at the end of the 18th century,” according to a Daily Beast article.

Notable members of the Federalist Society include all of the U.S. Supreme Court’s most conservative justices: John G. Roberts, Clarence Thomas and Samuel Alito. The late Antonin Scalia was also a member.

The group believes judges should “say what the law is, not what it should be” – an almost verbatim echo of Scott’s comment in 2011 about 1st District Court of Appeal Judge Stephanie Ray, who Scott described as committed to making sure “judges say what the law is, rather than what it should be.”

Six of the judges Scott has named to appellate courts since taking office either list themselves as members of the Federalist Society or have been on the agenda to appear before one of the first two annual conferences of the Florida chapters of the society.

Don’t bother applying
There are also suggestions that Scott only appoints certain kinds of attorneys or judges to the appellate courts. Attorneys for plaintiffs, particularly those in personal-injury cases that many Republicans scorn, have come to believe that it’s pointless to apply for appellate-court positions or spots on the panels that nominate judges.

The courts now also feature fewer lawyers who have represented individual clients, critics say, and more who were prosecutors and government lawyers, or represented institutions or corporations at large law firms.

That can be as much or even more of an issue than the political balance of the courts, lawyers say, because it has more far-reaching effects than the few, highly publicized blockbuster cases on polarizing issues.

Next week: The outlook for increasing the number of Black judges in Florida is poor.

Brandon Larrabee of The News Service of Florida contributed to this report.

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