Florida Justice Hunt Weighs ‘Bloodthirsty’ Originalist Options

In Florida there’s a split between candidates for the state high court over just how “bloodthirsty” they would be as originalist jurists.

In interviews Monday, 10 conservative male applicants answered a panel’s questions in hopes their name would be passed on as a potential replacement for retiring Justice Charles T. Canady. Though all are Federalist Society members—and adherents to judicially conservative philosophies putting emphasis on the original public meaning of laws when they were enacted—several split over how aggressive jurists should be when making calls from the appellate bench.

“The higher up you go, the less stare decisis matters,” said Third District Court of Appeal Judge Alexander S. Bokor, who brought up how he considers himself a “bloodthirsty” originalist in the spirit of US Supreme Court Justice Clarence Thomas. “On an apex court it’s probably a principle that’s used more as an inappropriate shield and it’s outlived its usefulness.”

Other candidates said they’d lean into aggressive positions taken by Judge Patrick Bumatay of the federal Ninth Circuit. He’s advocated for judges to go beyond arguments presented by the parties before them and to decide matters on originalist principles that weren’t argued. Justices and appeals court judges can even consider rejecting issues that litigants have stipulated to and reach the issues they want, Sixth District Court of Appeal Judge Roger Gannam said.

“The presentation principle is honored, but if an issue is brought to us, we say what the law is,” he said.

All applicants are vying to be on the list advanced to Gov. Ron DeSantis (R) by an eight-member nominating commission chaired by Jesse Panuccio, a partner at Boies Schiller Flexner LLP and a former acting associate attorney general in the first Donald Trump administration.

In his two terms DeSantis remade the judiciary, stocking the high court and appeals panels with jurists who will control Florida legal interpretation for decades to come. The unspoken question hanging over many of the interviews in Tampa Monday was how different candidates would go about addressing future challenges to precedent handed down by past generations of the Florida Supreme Court and appeals districts when liberals controlled the docket.

“This is a pivotal moment,” said First District Court of Appeal Judge Adam Scott Tanenbaum. “This is his eighth and presumably his last, his capstone appointment to cement what he’s accomplished.”

Judicial ‘Humility’

Several candidates said they viewed their role more cautiously.

John Matthew Guard, the chief deputy attorney general for the state, said he’d send a case back for further development rather than rule on an issue not brought up by the parties. He said he’d also make an emphasis on listening to colleagues to find consensus.

President Trump nominated Guard for the federal trial court, but that has stalled following a scandal in Florida around a state Medicaid settlement diversion used to help fund opposition to a recreational marijuana ballot measure. Guard has applied to both the Florida Supreme Court and a state appeals court and if picked he said he’d remove his name from federal consideration.

Others expressed similar sentiments, including First District Court of Appeal Judge Robert E. Long Jr.

“I think our job as judges, whether you’re on an apex court or intermediate court, is always to get it right and to find the right answer,” he said. “Reversing for an issue not raised is problematic—we are adjudicative bodies. It’s the parties’ dispute, not ours.”

Hunter Wyman Carroll, who sits on the trial court for Florida’s 12th Judicial Circuit, served as staff attorney under Chief Justice Charles T. Wells as the judiciary handled the 2000 Bush v. Gore election litigation. He put in a word for what he called “judicial humility.”

“You should only address the case that is in front of you, you shouldn’t try to make sweeping statements in any case because that leads to a lot of unintended consequences,” he said.

Thomas N. Palermo, a judge on the Thirteenth Judicial Circuit, said even when courts reverse past precedent they have to bring a sense of stability to the law.

“Sometimes courts get it wrong. You have to move with deliberate process,” he said. “You can’t leave parties feeling that the law is just darts thrown at the board.”

Even when making tough calls or disagreeing with colleagues, judges should be careful not to impugn each other because that contributes to public distrust in the judiciary, said Jared Smith, a Sixth District Court of Appeal Judge who was publicly criticized for blocking a child’s access to an abortion and later for campaign rhetoric.

“It’s very important that we don’t shoot at each other,” he said. “The last thing we need for the public to see is a judiciary with knives out for one another.”

Justice System Overhauls

Looming questions about the state’s judicial system management also surfaced during the interviews.

Some candidates openly called for an end to American Bar Association involvement with law school accreditation. Others called for a review of the state’s mandatory bar membership.

Sixth District Court of Appeal Judge Joshua Aaron Mize said he’s open to finding ways to make the justices take more cases, especially when appeals courts certify issues as matters of public importance.

Samuel J. Salario Jr., a former appeals judge and current partner at boutique Lawson Huck Gonzalez, said he’d be open to changing how the justices have appeals court judges perform unwritten decisions, creating rules that would require more written rulings.

“The courts generally face a credibility crisis because of political attacks on the branch,” he said. “I think what the Supreme Court can do is limit it.”