In late May, Gov. Ron DeSantis selected two justices for the Florida Supreme Court. One of them was Renatha Francis, a circuit judge in Palm Beach County.
Her appointment was hailed for adding diversity to a court that lacks it. An immigrant from Jamaica, she would be the only Black justice, and the only female.
But as the initial praise subsided, there came whispers in Florida’s legal community: Why her?
Francis was one of 32 applicants for the vacancies on Florida’s highest court. Seven were Black. Some of the others were judges with decades on the bench. Francis lacks similar experience, yet she was the only non-white candidate of nine final nominees submitted to the governor.
Now comes a direct challenge: State Rep. Geraldine Thompson, D-Windermere, argues in a lawsuit that Francis is unqualified to be a Supreme Court justice. That’s because Francis has not been a member of the Florida Bar for 10 years, one of the only technical requirements for joining the court. Francis won’t meet that until Sept. 24.
While judges are nonpartisan, politics is often a factor in their selection. And, as governor, DeSantis has the power to select who he wants.
But Thompson, who is Black, says the governor should have to pick someone else. She wants the Supreme Court to order him to do so.
The justices who were already on the court all boast law degrees from big-name schools: University of Florida, Florida State, Yale. All had experience ranging between 20 and 30 years as lawyers and judges before being appointed.
Francis, 42, got her law degree from the for-profit Florida Coastal School of Law in Jacksonville. The bulk of her legal career was as a clerk and staff attorney for the Tallahassee-based 1st District Court of Appeal. She worked directly for Judge Peter Webster and later for Judge Scott Makar. She wrote legal memos to three-judge panels and drafted orders.
In 2017, Francis joined the sprawling statewide firm of Shutts and Bowen, where she mostly represented insurance companies in personal injury protection cases. She worked there for seven months. She never tried a case.
The same year, Gov. Rick Scott appointed Francis to the Miami-Dade County bench. She wasn’t well-known there. Rumors swirled about her political leanings.
“She wasn’t welcomed by a lot of people in Miami,” said Deborah Baker, a South Florida lawyer who became friendly with Francis and her family. “But she held her head high, with a smile on her face, and went out of her way to make professional relationships.”
Francis presided over civil cases. Nicolas Babinsky, an insurance attorney, appeared before her in a personal injury bench trial.
“She wasn’t very familiar in the area of law I practice, but she took her time to know the rules,” he said. “I found her to be an excellent, fair judge.”
Less than a year into her tenure as a county judge, Scott appointed Francis to the circuit bench. She spent most of her time there as the first appearance judge, setting bail and determining probable cause for newly arrested defendants. She was there a little more than a year and had filed to run for election.
But then, DeSantis appointed her to the Palm Beach circuit court.
The move struck many lawyers as unusual; judges are typically appointed to the local courts where they already live and work. Francis did not live in Palm Beach County. Yet she beat out 39 other applicants for the vacancy.
Francis declined to comment for this story, referring questions to the governor’s office.
She was asked about the move in a recent interview before the Supreme Court Judicial Nominating Commission, the panel charged with vetting applicants and submitting a final list to the governor. She explained that her husband had a job opportunity in Palm Beach County, which led her to look for vacancies there.
Her husband is Phillip Fender. He runs Transformation Media Group, a consulting company. He is also a director of House of Protection, a faith-based charity in Pompano Beach whose mission is to help troubled youth and families.
Last year, First Lady Casey DeSantis was invited to be the keynote speaker at a House of Protection gala, though the charity said she and the governor did not attend the event.
A news release published in Miami Community Newspapers said guests would feature members of the judiciary, attorneys, and elected officials. It featured pictures of Fender with the first lady and Gov. DeSantis.
Fender, 58, said he has seen the governor at events but denied he has any personal connection with him. He declined to answer further questions. Recently, DeSantis appointed him to the Judicial Nominating Commission in Palm Beach County, though Fender is not a lawyer. Records indicate he and his wife have been registered Republican voters.
His wife took the bench in Palm Beach County in November. A month later, she applied to join the Florida Supreme Court.
Francis sat before the nine members of the Florida Supreme Court Judicial Nominating Commission in January.
She told them she wanted to help preserve our constitutional form of government. The way to do that, she said, is to “adhere to the original public meaning of the text,” an approach which “ensures judges aren’t legislating from the bench,” a concept she called “one of the greatest challenges to our democracy.”
She said she believed in applying the plain meaning of the law as written. She characterized her judicial philosophy as one of “textualism” and “originalism.”
They are philosophies often touted by conservative scholars and politicians. The idea is to base judicial decisions on the text of the law and the Constitution, rather than relying on things like prior court rulings or legislative history.
The late U.S. Supreme Court Justice Antonin Scalia helped popularize this mode of thinking. Such ideas are hallmarks of the Federalist Society, a legal organization regarded as advocating a conservative or libertarian approach to the law.
DeSantis was a Federalist Society member while studying at Harvard Law School. An adherence to the group’s views is his “singular test” for judicial nominees, his general counsel said at a Federalist Society convention in February.
Francis’ Supreme Court application shows she is also a member and has attended various Federalist Society conventions.
In her interview, she acknowledged that she hasn’t had experience with death penalty cases, which make up a large part of the Supreme Court docket. But she said she knows the issues and worked on similar matters at the appeals court.
“I’ve read those opinions and I’m familiar with some of them,” she said. “I’m certain I have the skills to get caught up on these issues very quickly.”
Addressing the administrative function of the court, Francis cited her experience running businesses in Jamaica. She ran a trucking company and a bar.
She noted in her application that she graduated with high honors from the University of West Indies. She said she was in the top third of her class in law school. She spoke of humble beginnings and how her diverse background could strengthen the court.
She was asked what people would say about her 15 years from now. Would she still be on the court?
“Absolutely,” she said. “My plan is to have a long and meaningful judicial career. … It would be that I adhere to the law, that I’m a textualist, that I’m an originalist and that I followed through on my promise to continue being those things.”
DeSantis announced her appointment in a news conference May 26 in Miami. He also announced the appointment of John Couriel, a Harvard-trained lawyer and former federal prosecutor with 16 years of legal experience.
Francis appeared at the news conference with her husband and their two children.
“From very humble beginnings to standing before you all today, I am truly the epitome of the American dream,” she said.
Rep. Thompson’s lawsuit challenging Francis’ appointment speaks of the importance of diversity on the Supreme Court. The petition calls it disturbing that the court has no Black or female justices.
It details the respective backgrounds of the other Black applicants.
They included Daryl Trawick, a Miami circuit judge who has more than 20 years as a judge and is a former federal prosecutor and military veteran. There was Elijah Smiley, a Panama City circuit judge who also has more than 20 years of judicial experience. And there was William Thomas, a former public defender and Miami circuit judge since 2004. The others included two Black female judges, Cymonie Rowe, and Fabienne Fahnestock.
All had more than two decades of legal experience. A couple, along with several of the other applicants, also voiced a textualist approach to interpreting law.
Francis was the only nominee who did not meet the 10-year threshold, the lawsuit states.
In an apparent nod to the textualist philosophy, the petition notes the “clear and unambiguous language” of the law requiring that Supreme Court appointees be members of the Florida Bar for 10 years. It also notes that the state Constitution requires the governor to make an appointment within 60 days of receiving a list of names from the Judicial Nominating Commission.
DeSantis missed that deadline in March. He said he pushed back his selections because he was consumed with managing the state’s response to the coronavirus pandemic.
Thompson’s lawyers say DeSantis violated the Constitution by not making the appointments in time. They argue that the nominating commission should submit a new list of qualified applicants and the governor should pick someone else.
Lawyers for DeSantis and the commission have responded that Thompson lacks the standing to challenge the appointment. They also argue that her petition misreads the Constitution, which is silent about the exact date a justice is supposed to take office.
On the Florida Supreme Court website, Francis is listed as “justice-designate,” slated to take office Sept. 24.
Reactions to her appointment have been mixed.
“Nobody is saying she’s not competent as a lawyer or a judge,” said Glenn Mitchell, a Palm Beach County criminal defense lawyer. “But if somebody cannot meet the criteria, how is it that this happened? ... I just don’t know how you have this meteoric rise.”
Janet Ferris, a retired Tallahassee circuit judge, has been outspoken in questioning the appointment. Beyond concerns about experience, Ferris is troubled by what she sees as efforts to attach an ideology to what is supposed to be a fair and impartial court system.
“You should have intelligent people who are hard workers who want to get to what the law is,” Ferris said. “Every time I hear them say ‘We’re gonna get our judges on court,’ I break out in a sweat. I don’t want the courts to be characterized that way. That’s not the way it should work. And in my experience that’s not the way it did work.”
Brian Tannebaum, a Miami lawyer who has practiced before the Supreme Court, said he doesn’t know Judge Francis, but has watched her trajectory and has heard good things.
He acknowledged it is helpful for justices to have a wealth of experience. That’s especially true at the Supreme Court level, he said, where decisions are made about life and death and the state of Florida law as it relates to so many monumental issues.
“When I’m getting on an airplane and I look through that cockpit window, I’m always comforted when the pilot, whether it’s male or female, has a little bit of gray on the sides,” Tannebaum said.
Don James, chairman of the Jamaican American Bar Association, attributes Francis’ rapid rise to a strong work ethic. Like many immigrants, he said, she worked very hard, very fast.
“However this turns out, Judge Francis has a very bright future,” James said. “I’m sure she has a great deal to offer the people of Florida and I’m sure we shall be benefiting from her service in years to come.”
(Editor’s note: First Lady Casey DeSantis was invited to speak at a 2019 gala for the charity group House of Protection, but the charity said she and the governor did not attend. A previous version of this story incorrectly described the first lady’s connection to the event.)