In the final days of his eight-year tenure as the governor of Florida, lame duck Republican Rick Scott finally appointed his first African-American appellate judge last week. Scott has appointed dozens of judges to the state's high court and courts of appeal since 2011, but until now, none were black.
Years of Scott appointments have resulted in a Florida judiciary that is only 6.4 percent black, though 17 percent of the state's population is black. White men comprise just over a quarter of Florida's population but an astounding 60 percent of its state court judges, according to a 2015 report from the American Constitution Society.
This glaring omission has drawn attention recently, as the Florida Supreme Court prepares to lose its only current black member, Justice Peggy Quince, to mandatory retirement. The court has had at least one black justice for the last 36 years, though Quince is the only black woman to ever serve.
Incoming Gov. Ron DeSantis, a Republican who campaigned as a critic of the current Florida Supreme Court, will appoint replacements for Quince and two other justices who've reached the mandatory retirement age. (The three retiring justices also include the court's only two women.) DeSantis made it clear that his priority is choosing nominees who will change the ideology of the court, specifically in cases involving "charter schools, tort reform, and welfare reform."
DeSantis will appoint the three justices from a list of 11 applicants, none of whom are black, chosen by a judicial nominating commission. Nine of the 11 applicants are members of the conservative Federalist Society, six are lower-court judges appointed by Scott, one is a former Republican legislator, and another is a Trump administration lawyer. The list of 11 includes two people of color and two women, according to Orlando Weekly. Most of them are young enough to serve for decades.
The commission's list was drawn from a pool of 59 lawyers who applied, six of whom were black. One of the black applicants was appointed by Scott to his current position as a judge, and another is a judge appointed by former Republican Gov. Jeb Bush.
Even if Democrat Andrew Gillum had won the election for governor last month, he may not have been able to appoint a black justice. That's because a majority of the nominating commission was chosen by Scott, and it's not clear if a new governor could have asked for a new list.
The threats to judicial diversity have led Democratic legislators and the Florida Access to Justice Project to suggest reforms to judicial nominating commissions. A proposed law would give the governor fewer appointments, limit commissioners' terms to four years, and require diversity of race, ethnicity, gender, LGBTQ identity, and partisan affiliation on the commissions.
Judicial power grabs
Florida's judicial nominating commissions weren't always under the governor's control. The current commission is the result of a series of changes by Republican state legislators in the last 20 years. When former Gov. Bush took office in 1999, he was criticized for pushing to get conservative ideologues on the bench. Then in 2001, with the backing of a coalition involving the state Chamber of Commerce and Christian conservatives, the legislature passed a law that gave the governor the power to appoint all members of the judicial nominating commissions.
Then a series of state Supreme Court rulings angered Republican legislators, starting with the court's ordering of a statewide manual recount in the 2000 presidential election. According to a recent tally by Florida political reporter John Kennedy, other rulings that legislators objected to included rejecting a state constitutional amendment that would've undermined the Affordable Care Act, striking down a 24-hour waiting period for abortions, ending Jeb Bush's school voucher program, rejecting plans to limit product liability and workers' compensation, and bucking the legislature on partisan gerrymandering.
In response, Scott and his allies tried repeatedly to change the composition of the court. In 2012, for example, the Florida GOP and the Koch brothers-backed Americans for Prosperity took the unprecedented step of opposing three justices — the same three whose terms will soon end — in their retention elections. But the voters kept the justices on the bench and also rejected a constitutional amendment that would have given legislators even more control over the courts.
Scott also radically changed the membership of the state's judicial nominating commissions. The current system still requires the governor to choose four members of each commission from a list compiled by the state bar, but the governor can reject the list and request a different one. Scott has rejected more than 90 names submitted by the state bar, including civil rights attorney Ben Crump, who represented the family of Trayvon Martin, the black teen shot to death by a neighborhood vigilante in 2012. The outgoing governor has been criticized for appointing ideologues, political supporters, and at least one campaign donor to the commissions.
Last year, the legislature did not move forward on a bill to reform the judicial nominating process to address diversity. And earlier this year, a committee of the state's Constitution Revision Commission narrowly voted against including similar reforms in a package of constitutional amendments that were on the ballot in November.
"Gov. Rick Scott packed the commission with members more interested in evaluating whether a potential justice is in total alignment with the governor's priorities rather than reflective of the diversity of our state, experienced, well qualified, fair and independent," Trelvis Randolph, attorney for the Miami-Dade County NAACP, wrote in a recent op-ed. "We need to make the Judicial Nominating Commission truly nonpartisan by removing the governor's outsized influence and increasing citizen participation."
Whiter courts in a diverse state
Florida's first black Supreme Court justice, Joseph Hatchett, was appointed in 1975. The next year, Hatchett was retained by the voters to become the first black official elected to statewide office in the South. In the decades that followed, Florida made steady progress on judicial diversity. In Jeb Bush's first two years as governor, before the new system for choosing judges, the Tampa Bay Times reported that he had appointed 15 black judges, out of 98 appointments.
But soon after Scott took office, the percentage of black judges in Florida began to decline. Over the course of his eight years in office, Scott singlehandedly undid decades of progress on judicial diversity made under governors from both parties. That regression is likely to continue under DeSantis, who promised to continue what he called Scott's "outstanding legacy" on judicial nominations.
The loss of black representation on Florida's highest court comes at a critical moment in the state's history. Following last month's ratification of a constitutional amendment restoring voting rights for most people with felony convictions, 1.4 million Floridians — most of them people of color — stand to gain the right to vote. If DeSantis and/or the legislature drag their feet on restoring voting rights, disenfranchised citizens could turn to the state Supreme Court, which has the final say on interpreting the Florida Constitution.
A lack of judicial diversity could also impact sentencing in criminal cases. A recent report from the Jacksonville Herald-Tribune found that the state's two most diverse courts are the least biased when it comes to sentencing.
Sean Shaw, a former candidate for Florida attorney general and the son of a black former state Supreme Court justice, is among those calling for more diversity in judicial nominations. "You follow the law as a judge," Shaw said, "but you bring your life experience to the bench in interpreting the law."
As DeSantis inherits Scott's nominating commission, the former governor will join the U.S. Senate, where he will be responsible for recommending judicial nominees from Florida to the White House. This includes nominees from Florida to the 11th U.S. Circuit Court of Appeals. An astounding 83 percent of the 11th Circuit's judges are white, even though the population of the circuit — which also includes Georgia and Alabama — is only 55 percent white.
President Donald Trump's nominees to federal courts have also been overwhelmingly white, 90 percent. His sole black judicial nominee was finally confirmed to a seat in Alabama in August. And all three of his appointees to the 11th Circuit have been white.