Panel 1: Retrospectives on 25 years of Judicial Reform in Florida

Nearly twenty five years after the election of Governor Jeb Bush, the Florida state courts have transformed. Previously, many state judges had a more activist, progressive view of the role of a judge. Today, many state judges hold originalist and textualists views of judicial interpretation. Our panel will consider the last 25 years of judicial appointments in Florida, discussing how the roles of the executive, the JNC, and the conservative legal movement have contributed to these transformations. They will discuss how the Florida Supreme Court today differs from the Court that ruled on Bush v. Gore in 2000.
Featuring:

Jason Gonzalez, Shareholder, Lawson Huck Gonzalez, PLLC and Former General Counsel to Governor Charlie Crist, 2008
Ryan Newman, General Counsel to Governor Ron DeSantis, 2021 - 2025
Daniel Nordby, Partner, Shutts & Bowen LLP, Former General Counsel to Governor Rick Scott, 2017 - 2019
Jesse Panuccio, Partner, Boies Schiller Flexner LLP and Former General Counsel to Governor Rick Scott, 2012 - 2013
Raquel “Rocky” Rodriguez, Shareholder, Buchanan Ingersoll & Rooney PC and Former General Counsel to Governor Jeb Bush, 2002 - 2007
Moderator: Hon. T. Kent Wetherell II, Judge, U.S. District Court, Northern District of Florida and Former Deputy Solicitor General of Florida, 1999-2002

Episode Transcript

Speaker 1 (00:04):
Good afternoon, ladies and gentlemen. I'm Gary berg Gosh. I'm
a retired Circuit Court judge from the First Judicial Circuit
of Florida, and I'm the president of the Emerald Coast
Federalist Society Chapter, which is out of Pensacola, Florida as well.
Is my distinct honor to introduce our moderator for this afternoon.
Our moderator is the Honorable Kent Weatherall. He's a judge

(00:25):
in the Northern District of Florida Federal judge. Judge whether
All has served as the United States District Court judge
for the Northern District of Florida since July of twenty nineteen.
He previously served as an appellate court judge on the
First District Court of Appeal from two thousand and nine
until twenty nineteen, and he was an administrative judge with
the Florida Division of Administrative Hearings from two thousand and

(00:48):
two to two thousand and nine. Before becoming a judge,
he worked as an attorney both in the public sector
and the private sector. Judge weather All received both his
undergraduate and his law degrees from Florida State Universe. Ladies,
and gentlemen, help me welcome Judge Kent Weatherall.

Speaker 2 (01:09):
Thank you Gary for that introduction, and thank you to
the Federal Society for inviting me to moderate this panel. Now,
federal sorry, federal judicial appointments get more press than state
judicial appointments. However, a good argument can be made that
the composition of the state courts are more important than
the composition of the federal courts, because federal courts, as

(01:31):
you know, are courts of limited jurisdiction, and the vast
majority of litigation occurs in the state courts. Also, the
efficiency and fairness of the state's judicial system can help
attract and retain businesses in the state. In Florida, as
you all know, judges are appointed by the governor from
lists submitted by the judicial nominating commissions. And in Florida

(01:53):
we have now had Republican governors for more than twenty
five years. Governor Bush and the Republican governors that followed
him shared the view that the role of the judiciary
to say what the law is, not what it should be,
And for the most part, that is the kind of
judges that these governors have appointed. But as Governor Bush

(02:15):
told you a little bit ago. It took a while
for the fruits of those efforts to come to fruition.
When I joined the first DCA in two thousand and nine,
which was more than a decade after Governor Bush took office,
seven of the fifteen judges had been appointed by Democratic governors,
and one of the eight judges who had been appointed
by a Republican governor was Judge NICKI.

Speaker 3 (02:36):
Clark.

Speaker 2 (02:37):
It was a very nice person, but not someone anyone
would think of as a textualist or an originalist. By
the time I left the first DCA in twenty nineteen,
all fifteen judges had been appointed by Republican governors. Now
that did not mean we always saw things the same way.
In fact, we didn't. There were an inordinate number of

(02:58):
InBank cases that we had first DCA, but by the
end of my time on the court, those cases and
the dissents that were written were driven more by disagreements
over the law than the proper excuse me, differences over
the proper interpretation of the law, rather than philosophical differences

(03:19):
about the role of the court visa v. The policy
making branches. The same thing that we saw at the
first DCA occurred throughout the state today. In addition to
the first DCA, every judge on the third, fifth, and
sixth DCA were appointed by a Republican governor, and by
my count, there are only two judges that are still

(03:40):
serving on the dCas that were appointed by a Democrat governor.
I want to pause for a moment and clarify that
when I refer to judges appointed by Republican governors and
judges appointed by democratic governors, I am not suggesting that
there are Democrat judges and Republican judges. In fact, I
firmly believe that the vast majority of state court judges,

(04:02):
whether appointed by Republicans or Democrats, or deciding cases based
upon the law, not their political affiliation or the political
affiliation of their governors. And for those of us who
are appointed by Governor Chris, that is a very good thing,
because his political affiliation changed over time. Now that said,

(04:22):
I do think, and I think Governor Bush touched on this,
that governors typically appoint the point judges who have similar
judicial philosophies that they do. For example, a prospective judge
who believes that the intent or purpose of the law
reflected in its legislative intent, should control over the plain
and ordinary meaning of the text of the law, that

(04:45):
the Constitution is a living document, and that new rights
can be found in its pre numbers if you look
hard enough, would probably have a better chance of getting
appointed by a Democrat governor than a Republican governor. Thus,
the political affiliation of a governor is a rough, albeit
imperfect proxy for the judicial philosophy of a judge. Now,

(05:07):
the shift that occurred at the DCA's is even more
pronounced at the Supreme Court. In two thousand and nine,
although there was nominally a four to three split between
Republican and Democrat governor Democrat appointed justices, for all practical purposes,
there was a five to two liberal majority on the
Court because, despite Jason Gonzalez's best efforts as general counsel

(05:31):
for Governor Christ, two of the justices that Governor Christ appointed,
Justices Labarga and Justice Perry, were quite liberal. Now, as
an aside, the two thousand and nine to twenty nineteen
Supreme Court is sometimes referred to as the Gonzales Court
because as general counsel, Jason was responsible for appointing a

(05:52):
majority of that court justice as Labarga, Justice Perry, Justice
Kennedy and Justice Polston. So if you're unhe happy with
any of the decisions that occurred during that period.

Speaker 4 (06:03):
You have ja is there a gong?

Speaker 5 (06:05):
I love this introduction.

Speaker 2 (06:09):
Now, on the Gonzales Court, Justices Kennedy and Poulston spent
most of their days writing descents which had to be
just miserable. But when those of us on the dCas
who shared the judicial philosophy of Justice Kennedy and Justice
Paulson received five to two reversals, we consider them to
be badges of honor. Today, the Florida Supreme Court has

(06:32):
a strong originalist and text lists six to one majority,
led by Justice Kennedy's protege, Chief Justice Carlo Menese. Governor
DeSantis has appointed five of the seven justice is on
the current court and seven justices overall, including two judges
who now grade my papers, Eleventh Circuit Judges Luck and Legoa.

(06:56):
And if you think about that, that is pretty remarkable.
It's akin to the eight U. S. Supreme Court justices
that President Roosevelt appointed in his twelve years in office. Now,
the new and some might say improved Supreme Court has
been busy undoing things, undoing some of the bad precedent
from the Gonzales Court era in both criminal and civil law.

(07:19):
Among other things, the court has interpreted, reinterpreted the right
to privacy clause in the Florida Constitution, eliminated proportionality review
and death penalty cases, narrowed the scope of its conflict
jurisdiction inmphasized the textualists standard for statutory interpretation, adopted the
Federal summary judgment standard, replace Fry with Daubert, and overhauled

(07:42):
the rules of civil procedure to speed up civil litigation. Now,
the panel we've assembled today will talk to us about
the transformation of the Florida courts that occurred over the
past twenty five years that led to these and other
developments in Florida law, and they are eminently qualified to
do so. I'm not going to go through each panelists

(08:03):
by impressive biographies because they are all well known to
this group. The key part of their biographies for purposes
of this panel is that each panelist was a general
counsel for one of the past for governors Rocky Riguez,
who you met earlier, General counsel of the government Bush
Jason Gonzalez, who I've told you about is was General

(08:24):
Council for Governor christ Dan Nordby and Jesse Pinuccio, General
councils for Governor Scott and Ryan Newman the current General
Council for Governor DeSantis. Now we've got a lot to
cover in a relatively short time. We're going to do
our best to save time at the end for your questions.
But with that, Rocky, let's go back to nineteen ninety
nine when Governor Bush came into office. You talked about

(08:47):
this sum with the Governor, but one of the biggest
hurdles that he faced when appointing the type of judges
that he wanted was that the J and C's were
controlled by the bar. By the time you joined the
governor's office in two thousand and two, the legislature had
amended the JAY and C Statute to give the governor
more authority, but that didn't solve all the problems immediately.
So if you'll talk to us a little bit about

(09:07):
the additional issues that you had with the JAY and cs,
the slates that they would send up of the J
and C members, the nominees themselves, the rules, and how
you overcame those issues.

Speaker 6 (09:18):
Absolutely, Thank you, Judge. Whether I'll think that was a
really great background. And at least Jason batted five hundred,
so we can't hold it too much against him, and
he wasn't all in his control. So I came in
at the end of two thousand and two, just after
Governor Bush was reelected, and by then the J and

(09:40):
C reform had been in place for about a year,
as you recall from my conversation with Governor Bush, and
many of you already know, the J and C commissioners
have staggered terms, so you might get a couple of
fresh faces, a few fresh bases every year, maybe one

(10:01):
per JAY and c uh. But you you it was
going to take a while, and we we slogged through
it through the the end of his term. But in
the meantime, while the the old guard was was still
mostly in control, especially because you know, the chair of
the JAY and C is basically you you serve for

(10:22):
a while and then you become the vice chair, and
then you become the chair. And it was you know,
very higher article. And there we already had in place
the Judicial Nominating Procedure Committee from the Florida Bar that
had created the rules UH in conjunction with all of
these appointees appointed under the old statutes. UH, there were

(10:45):
a number of procedures in place that also made it
made it difficult to to get nominees through. But I
would say one of the uh the biggest barriers in
the beginning to getting a broad group of nominees for
the court was some of the gamesmanship that not all

(11:07):
but a few of the jay and cs would engage in.
And as I mentioned earlier, the minimum that can be
nominated to the governor is three, the maximum is six. Well,
a lot of the JAY and c's, especially in some
of the smaller counties, would nominate only three, and in

(11:32):
some cases it would be two really horrible people that
they knew would never get appointed or thought they would
never get appointed. And then somebody that was actually competent
but probably did not share the governor's philosophy. So that
would put a governor, the governor in a in a

(11:52):
very difficult bind. It would put us in a bind.
But they complied with the law. And you know, once
in a while we would we would throw a letter
back and say you had all these applicants, can't can't
you do better? And whenever there was a vacancy in office,
I would send out a letter under the governor's signature

(12:12):
convening the JAY and C and he would specify that
he really wanted the maximum number of nominees, and he
wanted them to represent a broad spectrum of the state
in all of the different ways that Governor Bush described earlier.
And we would even actively participate in the training of
the JAY and c s to try to, you know,

(12:34):
to build up that philosophy. Another way that some of
the JAY and cs would try to limit the governor's choices.
And I remember one in particular, one J and C
had They had three vacancies at once, and they sent
out a slate of maybe three or four of the

(12:55):
same people for each vacancy, and when you did the math,
it did not yield a minimum of three nominees for
each vacancy. And you know, you just looked at them
in isolation. Oh, we complied, but it really did not
account to that. So that one the governor sent it

(13:19):
back and he finally got another list of six for
each still you know, six sixty six same names, but
at least he had a little bit more to choose from.
And so that another one where they didn't really stick
to the schedule for the submission of applications, and they

(13:40):
had it posted in one place but not another. And
and they got very few applicants and they only sent
the three and the Governor I said, you need to
do it, do over and somehow they did. So those
were a lot of the issues that that we faced
with with the j n CS, and we, you know,
we eventually worked work through it, and I think we

(14:06):
got a really good group of judges appointed. Despite those efforts.
You couldn't get one hundred percent success because you didn't
have one hundred percent to work with. But I think,
you know, I have confidence, at least in the time
I was there for four years, I felt good about
the appointments that he was able to make.

Speaker 2 (14:26):
Well, Jason, that brings us to Governor christ And I've
heard from reliable sources that you followed judicial appointments as
far back as your high school years. And there's no
question that you've played a large role in the growth
of the conservative legal movement in Florida over the past
thirty years in the attorney So talk to us about
what you've seen and experience over that time.

Speaker 4 (14:46):
Sure, and after that flattering introduction, I have to ask,
does anybody want to buy a law firm? You know,
with I see everybody's got a lot of notes up here.
I don't have any notes because in the christ administration
we really didn't didn't accomplish anyet But I knew I

(15:08):
was coming here to be the object of Charlie Chris jokes.
It's perfectly appropriate. But yes, I have kind of been
the Forrest Gump of Tallahassee politics. Three generations of my
family in Tallahassee, and my dad raised me around all
of it. And I remembered when my dad was the
first director of the Commission on Ethics and they declared
it unconstitutional. And I remember as a four year old

(15:32):
dad at the table founding the table about the judicial
activist judges legislating from the bench. So that those were
some of my earliest memories. But you know, I had
the privilege of watching you know, Carol Licko and in
and Daniel Woodring, who was an extraordinary force in the

(15:53):
in the earliest years of the Bush administration, in this
process of getting these courts on track, and then Charles
Kennedy and Rocky and watching what they did in those
early years and with the reforms in two thousand and
one that got everything started. That's the only reason we
probably wouldn't be having this conference today if those two

(16:14):
thousand and ones one reforms were not done. And you know,
echoing on, you heard Daniel earlier in his introductions talking
about the situation with lou Hubner. The First District Court
of Appeal JANC didn't even give this incredibly qualified Deputy
Solicitor General an interview, And Rocky mentioned some of the

(16:34):
games those Florida Bar dominated, Florida Bar Board of Governor's
Handpick dominated, Jay and C's the games they were playing
prior to two thousand and one. And I remember, I
think it was the fourteenth Circuit vacancy where you had
tried to tie the governor's hands with three nominees and
I think one of them was under criminal investigation at

(16:56):
the time. Another one was not under criminal destigation, but
he'd been convicted of a DUI and he got the
d u I on the way home from the courthouse
after hearing, and then they had the preferred candidate that
the good Old Boy network wanted for that vacancy, And
that was the sort of thing that was going on.
So these were very critical reforms. Knowing the you know,

(17:17):
how things work in the Florida legislature. I still don't
know how Governor Bush's team got with the power that
the Florida Bar had in the legislature at that time.
I'm in awe that they were able to get those
reforms done. But that is the reason all the good
things that are happening today have happened. And we you know,
it would be my preference that we completely take the

(17:41):
bar nomination process out of the J and c's because again,
the people of Florida don't elect the Florida Bar Board
of Governors. Most people don't even know who there their
Board of Governors members are. Honestly, I have no idea
who the second Circuit Board of Governors members are. I
just don't. I think the buck stops with the governor

(18:02):
on these appointments, and it ought to go to a
system where he gets to a point or she gets
to a point all of the members. And at some
point about fifteen years ago, we ran an analysis to see, Okay,
we suspect there's pretty dramatic political leanings of this group
that is controlling the selection process for an entire branch
of government and they're not elected by the people. Are

(18:25):
there political leaning issues? And we found in that analysis
eighty nine percent of the members of the Board of
Governors were either registered Democrat, Democrat donors or NPA or
Republicans that were major, major donors to Democrats. So there
was no hiding that it was way outside the mainstream,

(18:49):
very skewed operation that was getting to pick all the
JAY and C three of the J and C members,
and then they would would have the governors three and
they would always inevitably be able to control who was
picked for the for the other three in that process.
So it was just not something that led to a
judiciary that was reflected what our governors and the people

(19:13):
of Florida would have wanted.

Speaker 2 (19:16):
Well after the Christ era ends, we begin there with
Governor Scott and Jesse y' might you want to get
you popcorn ready for this? So, Jesse, you've been able
to have before you the twelve years of Governor Bush's work,
Jason's work with Governor christ and one would think that

(19:38):
made your job as general counsel for Governor Scott very
easy in selecting judges, and that at this point all
the work is done. So is it.

Speaker 5 (19:48):
Well thanks Judge, and thanks to everyone on this panel.
And I just want to start out by saying thanks
to Governor Bush for being here because you, as others
have said, I think everything that we've done since really
started with him and his gcs and his team and
they showed great courage at the time and doing what
they did, and they put in place reforms a framework
that allowed subsequent governors and subsequent GC offices to really flourish,

(20:13):
and a lot of people in this room or the
beneficiaries of that, So thanks to all of them when
we came in. So it's twenty eleven. Charlie Trippy, who
I think I see out there was first GC to
Governor Scott and I was his deputy, and you know,
a lot had been done. But if you just think
about the ages of everyone on the bench and how

(20:33):
long they can say we still inherited the judiciary at
that time, that really was made up of a lot
of people that still came out of that framework that
the that Governor Bush was talking about, this sort of
nineteen seventies era, you know, very left wing Florida bar
view of courts and how they should approach the law
and this kind of idea that if you had these

(20:54):
independent people on nominating commissions, you'd get the ideal judge
out of it, and there's no politics involved in that
at all, which is of course, you know malarkey. Uh
So when we got these, we looked at these J
and c's, uh and Charlie and I remember, we looked
at this and I was new to Florida at the time,
and I said, who are who are all of what
is this law firm? Morgan and Morgan? And why is

(21:16):
everyone on the JAY and C. From there found out
that Governor Chris had taken a job at that law firm.
So make of that what you will. You know, in
the Florida Supreme Court was still one of the most
left wing in the country, no doubt about it at
the time due to some you know, unfortunate retirements and
some some you know, Charlie Brown with the football, as

(21:38):
Republicans always do with their appointments. And by the way,
I want to note a side note. You know, this
was a constraining factor if you think about the governorships
and policy things that can get done. You know, Governor Bush,
early Governor Chris, Governor Scott, we were always they were
always laboring under the the you know notion that at
the end of it was going to be this Florida
Supreme Court that very predictably if they didn't like the policy,

(22:00):
they were going to strike it down. And you know,
contrast that today when it's a much fairer shake up
there on the policy. So it does matter on the ground.
But you know, our approach was powers that Governor Bush had.
You heard about what he got through the legislature, but
they hadn't been fully fleshed out yet. You know, they
got put in place, and it was very important. And

(22:21):
I think when we came in, Charlie and myself and
others who followed said, Okay, we're going to start to
use these And so I remember the first time Governor
Scott rejected a bar list for the JAYNC for the
first time ever, and you would think, I mean, we
had to do rounds of negotiation. It was like papal
visits from the Florida Bar President to the Governor's office
when we were going to do this. Now, Ryan, they

(22:42):
do it all the time, but back then it was
quite a big deal. We also, for the first time,
began interviewing every single person applying to be on a JNC.
It was critically important. We wanted to know who was
getting appointed, what did they think, did they share the
governor's vision. It was a ton of work, and I
remember Charlie said, we're going to had us all in
that little library in the Governor's office, and he said,
we're going to do this brick by brick, house by

(23:03):
house across the state. Now there's twenty some on Jay
and C's. They have nine people each. These are hundreds
of interviews in a shop that had six lawyers. So
we did this stuff night and day. We also interviewed
every judicial applicant. We gave them all a half hour
every time we wanted to hear about them. We were
looking not just for judicial philosophy, but intellect We were

(23:24):
looking for reputation in the community. We were looking for
courage under fire. All of these things were important, and
we tried to come up with a process to get
to that. I don't have enough time, and I can
tell you some funny stories from the time about what
we had to do the rest control of these Jay
and C's. The fourth CCA was a great example. I

(23:45):
remember when that court flipped and what we had to
do and I remember the person we put on the
JNC who was the deciding factor. And I told them,
I said, here's what they do. Now that they're losing
control the bar they go in. They try to change
the rules of the JNC so that it's not a
majority vot anymore. I say, you have to resist that.
There's a statute that says very clearly five members of
the JNC decide who's on that list. And every time

(24:07):
they yell at you, I want you to point to
that statute, and I want you to say, here's the statute.
I'm calling for a vote. We're taking that person off
the list and putting this person on. And he did that,
and the meeting lasted ten hours and we got the
nominees we wanted in that court flip. It was a
very substantial time in the office. I remember that. So

(24:27):
we've accomplished a lot in twenty five years, a lot.
And I think everybody in the stage will share that message. Now,
I want to close with something a little different, which
is to say, you know, I get the sense when
I talk to people in this room we've kind of
reached this end of history moment, like, well, we've done it.
We've reformed the flood of judiciary and we're done. And
that's not true. And it's not true for two reasons. One,

(24:49):
it's a really fragile thing where one governor, where one
General Council away from it all going the other way.

Speaker 4 (24:55):
Right.

Speaker 5 (24:56):
People retire, they leave, they move on in their career,
they get appointed from one court to another court, to
the federal bench. And so the vigilance has to be there,
the people in this room, the people in this network.
One of the things we did in the early Scott years,
and Jason was there, was we started this conference. The
point of this conference was to be able to have
this network and make sure we're vigil on this. But

(25:16):
I also just want to caution against the idea that
we're even now we're done and everything is honky dory.
There are things that still need to happen in terms
of judicial reform in our state, and I'll just close
with that. You know, one of them is Jason mentioned
the Florida Bar. It is shocking to me that six
years after we changed the Florida Supreme Court, we are
still laboring under a unified bar in this state. I

(25:39):
personally don't want to and I know many other conservatives
that don't want to either. I am fine to be
a member of an association that run by the Flint
Supreme Court that certifies my license and does my cole
and does the discipline, but I really don't want to
be a part of the political organization that's known as
the Florida Bar. And I don't understand why the court
won't take action. It's time. It's time. They don't need

(25:59):
to weigh for someone to bring a case. They can
do it on their own motion. They've done a lot,
and I think the court should do it. It is time.
We're six years into this two I think, and I
bet the trial judges would agree with me. I think
the legislature ought to look at pouring a lot more
resources into our trial courts. I think they need law clerks.
I think they need more staff support. And that's from

(26:21):
a private lawyer's perspective. We have these great business divisions
around the state. But I'm there and the judges are
overwhelmed and they need time and they need support. And
instead of creating, you know, I'm sorry to my friends
the DCA that we didn't need and putting twelve new judges,
we could have put that money into the circuit courts
and it would have done a lot more for the
people around the state who rely on the judiciary. My

(26:42):
own view, but I bet it's shared by the clients,
the people who litigate around the state. And then lastly,
you know, I will say about the dCas everybody knows
if they've been before me on a JAY and C.
I asked this every time, what's your view of PCAs,
what's your view of you know, the right time for
an opinion. We still we'll have appellate courts that put
out an inordinate amount of PCAs in cases that deserve

(27:04):
decisions or at least some reasoning, and sometimes the decisions
take two in three years. And I just would urge
judges out there for those of us who have clients.
If clients don't get a decision for years, or they
don't get reasoning for the decision, judicial reform means nothing
to them. They don't think the courts have reformed at
all because they don't know why their case was decided

(27:25):
the way it was decided, and they don't know why
it's not getting decided. And so it would be nice
if we could have some systems in place that sort
of move these cases along through the appellate courts the
decision because it does matter to the people that the
justice system is actually four in this state. And then
the last thing I'll say is, look, as a matter
of judicial philosophy, I do not think we've reached nirvana yet.

(27:45):
I will just give you two examples from our High
Court that I think you know we're wrong. They were
very wrongly decided, and they matter greatly. One was the
decision Thompson versus Francis, the first appointment of now Justice Francis,
where the question was a critical question of gubernatorial appointment power,
and it was very clear in the text of the

(28:07):
constitution that it's holding office that requires ten years in
the bar, not appointment, and the court swept that aside.
They swept aside a controlling precedent, and they said we're
just not going to have it. That did not to
me look like robust textualism. And worse still, they allowed
a exercise of quot warranto and they cited as the

(28:27):
worst precedent from the last fifteen years. Why lev Scott
as good precedent, and they said, you can challenge this
for Couol warranto. Three years later, another opinion comes out
called Wes Flagler, and the court said, that's not a
proper use of quo warranto anymore. You can't use quot
warranto to challenge the way an official carries out their duties.
And so it was really jarring to see a court

(28:48):
that sort of wove around to get to this result
that I think if you were looking at it as
a pure textualist and adherence to President, you wouldn't have
got there. And the other decision, I can't let a
panel and judicial form go by without mentioning this the
ballot decisions from last year, particularly the amendment for decision.
You know, at least for me and I think others
in this room were stark. The court basically said, so

(29:14):
long as a ballot a proposed ballot amendment summary follows
the text exactly of the proposed amendment, we have no
job as a court for judicial review. And if you
actually play that out, it's I mean, if you had
a ballot measure that said the right to purple meat
loaf on Thursday shall be in violate, they would let
that on the ballot as long as you repeat it
on the summary, it doesn't make any sense, and so

(29:36):
it's sort of gutted judicial review, and it gutted it
on the most important fundamental issue to judicial conservatives and conservatives.
I thought it was a you know, I thought it
was a moment that really for me said we are
not there yet on judicial reforms. So in some we've
done a lot, A lot of great stuff happened, but

(29:56):
there is more to go and I'm looking forward to
the next twenty five years.

Speaker 2 (30:04):
The views expressed on this panel are purely my own.
Van you follow Jesse in Governor Scott's administration, Jesse seems
to see the glass half empty. Do you agree or
is it half full? As compared to where we started.

Speaker 3 (30:22):
Well, thank you, judge, and appreciate the Federal Society and
other members of the panel here.

Speaker 4 (30:26):
Well.

Speaker 3 (30:26):
I came into the job in April of twenty seventeen
to finish out the last twenty months of Governor Scott's
second term. And compared to Rocky's efforts to implement the
JAY and C reform, Jason's client management issues that he
had to overcome, and Jesse and Charlie Trippy's worked to
repopulate the JAY n c's with commissioners who saw their

(30:48):
job as to assist the governor in the appointment power,
rather than to oppose the governor. I was there during
what I would say is relatively a golden age for
judicial appointments. My first week on the job, I attended
the investiture of future Justice Robert luck to the third DCA.
My last day in the job was the appointment of

(31:10):
future Justice Meredith Sasso to the fifth DCA. And in
between those two bookends we had the Accounty and Circuit
Court appointments of future Justice were not the Francis and
the County and District Court appointments of future Justice Jamie Grosshands.
So we had a good run during our time. But
I agree with Jesse in general that the work's not done.

(31:30):
There's still work to do. I think the process is
never done, and it should never be done. Our biggest
challenge during my time in the Governor's Legal Office wasn't
with the legislature or really with the Florida Bar. It
was with the courts themselves. Part of my charge to
finish out Governor Scott's term was to set the stage

(31:51):
for the appointments of the replacements for Justices Perrente Quince
and Lewis. At the time, the Florida Constitution provided for
mandatory retirement of justices and judges when they reached the
age of seventy, but if they were more than halfway
through a six year term, they got to finish out
that term. And as the birthdays and the calendars fell,

(32:13):
Justices Perrynte, Quince, and Lewis all turned seventy years old
during the second half of their six year terms, so
that their terms ended the same day and the same
time as Governor Scott's second term. So we were in
the same situation that Governor Bush faced when he came
into office, with a dispute over a potential dispute at

(32:34):
least over whether the incoming or outgoing governor was entitled
to make those judicial appointments. Now, our working assumption was
that in the past Governor Chiles and Governor Bush had
worked it out that they had a list provided from
the JNC well in advance of inauguration day. They met,

(32:55):
they conferred, as you heard from Governor Bush, and they
came to at least an agreement not to disagree on
who that selection was. Governor Chiles made the appointment in
December before his untimely passing in December, and then Governor
Bush elected not to challenge that appointment when he came
into office. So our assumption was that that was at

(33:17):
least a constitutionally permissible process for this dispute to play out.
The League of Women Voters of Florida had different ideas,
so they sued in Quotronto in June of twenty seventeen
for a determination from the Florida Supreme Court that Governor Scott,
unlike Governor Chiles, lacked the authority to make an appointment
for these judicial positions. Our office quickly defended that the

(33:42):
Quoharnto petition, both on the merits that governors routinely make
prospective appointments for vacancies that are known to occur in
the future, and we'd also raise some jurisdictional and prudential arguments.
In particular, we attacked what was at that time a
relatively novel use of tax pay standing in couoh Toronto actions,
which has continued since then, as you heard from Jesse,

(34:05):
and we also made some prudential arguments. There was a
case in the nineteen fifties where an incoming governor excuse
me an outgoing governor appointed a county court judge because
the incoming governor wasn't sworn in until noon, and the
outgoing governor made the appointment before the incoming governor was chosen. So,
you know, we had some merits arguments as well as
some jurisdictional and prudential arguments. At the time, the Florida

(34:28):
Supreme Court, with four justices, dismissed bought the last of
our arguments on ripeness argument. They said, Governor Scott hasn't
done anything yet, so therefore we have no occasion to
weigh in yet. But there were concurring and dissenting opinions
that suggested strongly that should this come up again at

(34:48):
a later time, they would be prepared to decide the case,
and potentially decided in a way adverse to the outgoing
governor's appointment power. We had a second case involving the
judicial the authority of the governor to appoint judges to
the trial courts, whether those appointments should occur through whether
those judicial selections should occur through the election process or
through the appointment process. That was a case where a

(35:11):
trial judge in Leon County just blatantly disregarded controlling First
DCA precedent. It went up on appeal. The First DCA
affirmed their prior precedent on that that the governor was
able to appoint as to vacancies that occurred before the
candidate qualifying period. But then the Florida Supreme Court came
in with an all ritz petition blocking the appointment process

(35:33):
and taking jurisdiction, which was a pretty ominous sign as
to the history of what that president would be. After
argument in that case and after the election had occurred,
the Florida Supreme Court discharged jurisdiction in the case and
let the first DCA precedent stand on that, affirming the
governor's appointment power. And then the last case that we

(35:56):
dealt with on the governor's appointment power was the Return
of the League Women Voters of Florida, where they came
back in after the governor asked the JAY and C
to convene and to begin the nomination process on precisely
the same schedule that Governor Chiles had twenty years earlier,
and to recommend names to him. Another quote Warnto emergency

(36:16):
lawsuit in the Florida Supreme Court that requested not only
that the governor not be allowed to make the appointments,
but that the j and C not be allowed to
begin its process until a new governor was elected. If
you'll recall, in September and October of twenty eighteen, it
was far from clear who the next governor would be,
but the public polling at least suggested that it may

(36:39):
not have been Governor DeSantis. So the Supreme Court in
that case issued a kind of an odd unsigned opinion
saying Governor Scott doesn't get to make these selections, and
we're going to have oral argument two days after election
day on whether the JNC can continue through its process.

(37:00):
Night comes, and much too many people's surprise, Governor DeSantis
won a very close selection and thank god for that.
So at the oral argument two days later, we had
a rather glum council for the League of Women Voters
of Florida making the argument that only governor elected DeSantis

(37:20):
could make which warmed my heart a bit, and the
Supreme Court ultimately said that the JAY and C could
indeed begin its process just as it had many many
times over the past fifty years, to avoid physical vacancies
of three justices on the court for the entire time

(37:40):
period before the process could play out if they were
not allowed to begin until inauguration day itself. So you know,
with that Governor Scott left office and Judge Weather I'll
alluded to it earlier, having thirty five of the sixty
four DCA judges at the end of Governor Scott's term
had been appointed by Governor Scott, So more than half

(38:03):
of the DCA judges during that eight year term out
of a total of four hundred and six judicial appointments.
So I think during those eight years we were finally
able to see the culmination of some of those reforms
that began with Rocky and with Daniel and with Governor Bush,
and I think those were a critical foundation for what

(38:24):
ultimately led to these reforms in the judicial process and
then handed it off to Ryan and some of his
predecessors in the office.

Speaker 2 (38:32):
Then well, that then does bring us to Governor DeSantis
and Ryan as his current general counsel. And Ryan, it
seems like you've benefitted greatly by two main things. One
the growth of the conservative legal movement that this body represents,
as well as the foundation that Governor Bush and the
subsequent governors have laid in the appointment process and the

(38:53):
JAY and C process.

Speaker 4 (38:54):
So it is that the case?

Speaker 2 (38:57):
And if so, what challenges have you had and what
issues do you see moving forward?

Speaker 7 (39:02):
Well, that's no doubt the case. I'm mostly here because
I wanted to listen to my predecessors. I felt like
I owe so much to them and the work they
did and you know, getting this whole process up and running.
In fact, as I was, as I was listening to
you know, all the fights and you know difficulties that
they faced, it sort of dawned on me that, well,

(39:25):
they must have devoted, you know, so much of their
time to this effort. And indeed, while we in my
office do spend a lot of time on judges, you know,
having a process that works and functions effectively, having a
conservative legal movement in place from which to draw appointments

(39:47):
really freeze us up to you know, I don't know,
pick fights with Disney or or with the legislature.

Speaker 8 (39:59):
You know.

Speaker 7 (40:00):
I hope everybody is enjoying the Central Florida Tourism Oversight District. Welcome, Welcome,
We're friends again. Everything everything is uh is good? Is good?

Speaker 4 (40:12):
Now?

Speaker 7 (40:14):
No, it's it's it's interesting because I'm not from this state.
I don't really know much about this state until I
showed up to be the Governor's General counsel and had
to take the bar exam in fact. But before that,
you know, I spent so much time in d C.
I was a chief counsel to Senator Cruise on the
Judish Senate Judiciary Committee. I was the head of the

(40:37):
Office of Legal Policy at the Department of Justice. Both
of those jobs, you know, focus a lot on judicial
appointments and judicial selection at the at the federal level.
And I look across states right now, and we have
litigation you know, in other states in Alabama and so forth,
and we lose in front of Trump judges, and that

(40:58):
shouldn't happen. Well, the reason why that is just because
there's this thing called the United States Senate, and the
United States Senate becomes a real problem for it can
be a real problem for getting the right people into
federal judicial office. That's not the case here. So when
I when I came here, I thought, Man, this system

(41:18):
is awesome. You know, this is unbelievable. You mean, you know,
the governor just gets to pick from this list and
that's it, you know, we don't have to go sell
this to anybody else or get you know, get it
approved by the Senate or you know, anybody in the legislature.
And I thought, this is amazing, you know, and it
and it is a very potent system, and I think

(41:40):
one of the best systems in the country. And that's
proving I think to be that way. But it really
is only so good as the as the governor who
sits in the chief executive office. You know, it's it's
the governor that sets the direction for judicial uh, for

(42:00):
judicial appointments, and if you don't have the right person
in that office, this thing can go off the rails
real quick. So it is it's absolutely critical to have
a governor who you know, is focused on this, who
sees the importance of judicial selection, who understands, you know,
that that the judicial role is a limited one and

(42:24):
that judges should, you know, adhere to the original public
meaning of the legal texts that they're interpreting. And that
is absolutely critical. Now I will say, we were talking
about the bar. I have to I have to confess,
and I hope nobody starts working on my dispartment papers
or something, but I really don't communicate much with the Bar.

(42:48):
We don't. So it's interesting listening to some of my
predecessors talk about, you know, having you know, meetings with
the Grand Pooba of the of the of the of
the Bar. We just don't do that. Yes, we understand
that they you know, nominate uh people for for four
of the spots on the j n C and we

(43:10):
you know, we work with them, you at lower levels,
but you know, we don't really you know, interface with
them too much. And if there's a if there's a
list that we don't like, we'll either sit on it
or reject it until we get candidates that we that

(43:33):
we like for the jen C s. Now, we talk
a lot about you know, picking the judges, but the
j n C s do you know, play an important
role in the process and so uh the Governor's office
has to be cognizant of that and put effort into
selecting the right people for the gen cs. And that's

(43:53):
where a lot of you come in. A lot of you,
some of you sit on JAY and c's here, a
lot of you help provide uh tip to us and
you know, on the ground information about candidates for JAY
and CS, and that's absolutely critical. Because we want the
JAY and c's to also adhere to the same judicial
philosophy that we're looking for in our appointments to the bench.

(44:14):
It's it's absolutely critical. But one of the things that
I think is just so so great about this system
is it really does free up the governor's office to
put aside politics and if you have the right governor
in place, it's not a transactional thing. We can actually
make appointments based on the quality of the candidates and

(44:35):
their commitment to the judicial philosophy that we believe is
the correct judicial philosophy for people sitting on the bench.
And that's what we've you know, that's what we've tried
to do in the Desantus administration. And I've said this
many times before. You know, we're looking for people who
fly their colors, you know, we're not. We're not trying

(44:55):
to find a candidate that we can slip by, you know,
h a j NC, or that we can slip by
the public or the or the press, so that we
can slip by you know, other politicians in the state.
We do not care about that at all. And in fact,
it's a it's it's a it's a it's a knock
against you. If I can't look at your record and

(45:17):
see somebody who's committed to what we're talking about here.
If I can't see it in your record, you will
not get appointed by this administration. And and and just
to just to sort of underscore the kind of mentality
that Governor DeSantis has about this, there was a judge,
Jared Smith, who is a circuit judge in Hillsborough County,

(45:42):
and he denied a judicial bypass to a miner who
was seeking who was seeking to obtain an abortion. And
so the left decided that they were going to put
effort into getting him knocked off the court in election,
and they succeeded. They focused on him in Hillsborough County
and they got impooted off the court. So what did

(46:04):
Governor DeSantis do? You appointed him to the sixthty tha Right,
But that's what we're looking for. We're looking for people
who do the right thing, and if they do the
right thing, they will be rewarded by this administration. If
they they got to fly your you've got to fly

(46:26):
your colors. That's what we're looking for. If you spend
your whole life in a law firm doing business cases.
As admirable as that is, Okay, that's going to be.
You know, you still might get on the court, you
still might got to what we're looking for. So much
more than that, you know, you've got to take some
time out of your career to go serve in government,

(46:48):
do something, you know, do something that could be could
cost you something, you know, take a stand. That's what
we're looking for, no more you know, trying to read
tea leaves in people's backgrounds.

Speaker 4 (46:59):
Were with it.

Speaker 7 (47:00):
We're done with it. And this process allows us. This
process allows us to do it, to do it that way.
And and so I want to thank my predecessors for
all that they've done to t things up where we
can do what we're doing here. It's certainly made my
life a lot, a lot easier as far as you

(47:21):
know things. It was interesting hearing Rocky talk about, you know,
some of the challenges she faces with the Jay and C's.
We still face some of those challenges, no doubt. I
mean there are some you know, some circuits in the
state where they do try to cabin the governor's choice,
and you can tell the games that they play. And
you know, if if we do suspect that A. Jay

(47:43):
and C is playing those games. We look for the
next opportunity to fire people and put somebody else on there.
You know, the other challenge that we face, we still
face even you know, as the conservative legal movement grows,
it becomes a bigger tent. You know, it does get
a little bit more difficult to determine. You know, you know,

(48:04):
who's really committed or who's doing this because they know
that to get an appointment in this state, well this
is the box you got to check, you know, and
there and it is remarkable when we do interviews. You know,
everybody comes, everybody is thoroughly read Scalia's reading law, and
you know, gives us the same the same answers, and
of course we try to ask more probing questions to

(48:25):
figure out, uh, you know, how committed are the candidates
to these particular ideas. That being said, the mere fact
that people think they need to do that is it
self success, right, because I do think that you know,
as people are exposed to these ideas that have been
developed over over time, and they they will see the

(48:46):
value in them, they'll see the correctness and them, and
people will begin to internalize it and believe it. And
so I think that's how a movement, uh, you know,
that's how a movement's a launch, that's how a movement grows,
and that's how movement it moves forward. But you know,
as the temp becomes bigger, we are we are definitely
more discerning about you know, what you've done in your

(49:08):
life to demonstrate that you believe these things, not that
you've shown up without a previous record and are telling
me these things those that that's just not going to fly.
The other thing too, is, you know, as the movement
gets bigger and more sophisticated too, and you know, there's
there's a lot of diversity of thought even within the

(49:32):
conservative movement. So this is another I think challenge for
us to figure out, like, well, among the various perspectives
on offer, you know, which do we really want and
believe in. That's something even within our own office that
we're that we're grappling, uh, that we're grappling with as
within the conservative movement there is more you know, debate

(49:53):
and discussion about things. But that's just a function of success.
That's a function of a growing movement, uh with with
you know, more people and more ideas but I do
think that's a you know, that's a challenge that we're
that we're trying to work through. Even even today.

Speaker 2 (50:13):
We've got about ten minutes left and we told you
would save time for a question. So I assume there's
microphone somewhere. Anybody has questions, come on up. O. My
main job on this panel, so I'm trying to heard
some of these cats, is to set the bar low
so future panels don't have to do much better, and

(50:36):
then also to finish on time. So we're going to
do that, Yes.

Speaker 8 (50:39):
Sir, Yes, I'm Jake Wielden. I am currently the General
counsel for the Department of Business and Professional Regulations that
work with Ryan all the time. So my question is
as an administrative practitioner, we deal with DOA all the time,
which is, as you know, extremely different from your typical
Supreme Court judge or you know, dCas anything like that.
And there's in particular, maybe one or two al j's

(51:02):
who we've had some interesting decisions, I would say, from
over the past few years. DOAH judges are career service employee,
so they have jaw protection. They're not subject to you know,
any kind of uh, they never go up in front
of a ballot or anything like that. So I just
wondered if any of you had ideas on judicial reform

(51:22):
as far as it reaches DOA and you know, those
type of positions that are really insulated from popular thought
where once you get on there you behave good for
a year. We may be dealing with you for life.

Speaker 2 (51:35):
Wants to take a stab at that.

Speaker 5 (51:40):
Well.

Speaker 7 (51:40):
As an executive branch guy, I would like to remove
the job protections. Whether that will ever happen or not,
I have I have no idea, but but it is
a focus of ours too when we have an opportunity
to put people on, to put people on who share
the appropriate you know, philosophy for being on a court.

(52:02):
I don't know if anybody else has it.

Speaker 3 (52:04):
So so I actually had the opportunity to represent the
Division of Administrative Hearings in a Public Employee Relations Commission
case where they try to discipline an a LJ. And
I saw the full force of those career service protections
that are afforded to administrative law judges, even ones facing
the charge of insubordination to their superiors, which is, you know,

(52:24):
it's a certainly something that you would not expect to
have to deal with when you're when you're talking about
the lawyers and the executive branch and other high ranking officials.
So I think that the challenge there is is trying
to develop what is the balance there between the pure

(52:45):
at will employment and the idea that there will be
some kind of an independent or quasi independent adjudicator for
some of the cases that come in front of the
Division of Administrative Hearings. Obviously don't have a solution to that,
but I agree with you it's a it's a real
challenge because unlike a county judge, a circuit judge, a

(53:06):
district judges, the Florida Supreme Court justice goes in front
of the voters and the voters can say no at
some point, there really isn't a process like that for
administrative law judges that in a lot of cases exercise
much more significant authority in final order authority and a
lot of executive branch cases that can be more significant

(53:27):
than some county court judges have within their jurisdiction.

Speaker 6 (53:31):
I have a view because I've had some experience in
this area, and I.

Speaker 8 (53:36):
Think that.

Speaker 6 (53:38):
One of the things that we need to remember is
Amendment six to the Florida Constitution, which was co authored
by retired their District Court of Appeal judge Frank Shepherd
is here today and Roberto Martinez, who Governor Bush mentioned earlier.
And that means, you know, it eliminated the Chevron doctrine
in Florida, long before the federal Chevron doctrine was addressed.

(54:03):
And it says basically that the you know, there's no
agency deference. But I think we've got a legacy of
that in some way in Florida's statute that allows agencies
to change the legal conclusions of the DOA judges. And
so when an administrative judge reaches a legal conclusion that

(54:28):
the agency doesn't like, they can't change the fact findings,
but they can change the legal conclusions. And I was
on the losing end at least up to now, of
that challenge in a case, and I I am waiting
to see if it gets teed up again in some way,
or if the legislature will will take it up or

(54:50):
a governor's office. And it's probably against the interest of
the executive branch to do something like that, but I
do think it's an anomaly in state law, and it
could be now you know, part of the rub between
some administrative judges and executive agencies. I don't disagree that,

(55:12):
because I went through this as general counsel for Governor Bush,
that there were some very you know, outcome focused administrative
judges that we also had to contend with, so they
never quite come out exactly as you want. But I
wanted to bring that out because I think most conservatives
believe in the elimination of the Chevron doctrine, and it's

(55:35):
something that we as conservatives might want to look at again.

Speaker 4 (55:39):
All right, thank you.

Speaker 9 (55:40):
Next question, Eric Palmer. My question is for Ryan, as
a also former Senate judiciary person. I was struck by
your remark that it might have been better if the
founders had left advice and consenate of the Senate out
when it comes to judicial appointments, in particular because you

(56:04):
and I both clerk for a guy who only made
it to the Court by virtue of some Senators standing
up to President Bush and saying, maybe Harriet Myers is
not a better pick than Samuel Anthony Alito Junior for
the Court, and I wondered if you'd ever thought about
it in comparison with your kind of more general thought

(56:25):
on the merits of the Senate's contribution to that process
at the federal level.

Speaker 2 (56:30):
Before I let Ryan answer that question. Having spent close
to a year and a half of my life waiting
on the US Senate to exercise this advice and consent authority,
I would be more than happy that they have the
time frames that the state judicial process has. That was
a miserable period of time. Thank you, Jeff Flake. But

(56:51):
in any event, Ryan, what are your thoughts.

Speaker 5 (56:52):
That's how clients feel when they're waiting for opinions, So
just remember we.

Speaker 2 (56:56):
Can get those PCAs out a lot quicker.

Speaker 4 (56:58):
You don't like those either.

Speaker 5 (57:00):
Well, I'm not saying don't do your job. I'm just
saying to do it fast.

Speaker 7 (57:03):
That's well. I mean, it is interesting that virtually every state,
I mean, I don't remember what the numbers are right
now in every state's different, but virtually every state has
rejected the Founder's model for judges, and you know, the

(57:27):
Framer's model for the federal government has been rejected. And
virtually every state, I believe.

Speaker 5 (57:32):
Except there may be any New Jersey has Senate confirmation
and it's caused a mess up there. I mean, I
think they went without Supreme courtis.

Speaker 7 (57:39):
Yeah, while and no offense to to judge wetherall. Uh,
you know, I do think that I do think there's
an element of a federal judiciary run amock that's virtually uncontrollable,
uh at this point, that does it. I'm not suggesting,
of course, that we go to maybe the Texas model
where every judges elected, but I do I do like, uh,

(58:06):
you know, having some you know, moderate check on the
judiciarying here we have retention elections of course for DCA
and Supreme Court judges. But I like the j and
C process in the sense that you know, there's there's
some check on the governor up front with an open
process j n C members who can you know, vet

(58:28):
the candidates, ensure you know, some basic minimum standard of quality,
you know, and then and then and then the governor
makes the appointment from from the list. You know, as
long as the j n C bodies themselves are structured
in a way that it's not controlled. And I and
I agree with everyone up here that it would be

(58:49):
nice just to eliminate altogether the bar's role in this process.
But so long as there is you know, properly structured
j and see then you know that that is the upfront,
you know, check on the governor. But it seems to
me like this process is a much is a much

(59:11):
is a much better one for procure for for procuring
a judiciary that is, you know, philosophically appropriate. And I think,
you know, notwithstanding you know that we have disagreements with
the courts, I guess that just underscores that you know,
they don't they don't do just whatever the government whatever,

(59:33):
the governor who pointed them expects that they do exercise independence.
But they are still all exercising the philosophy uh that
we that we put them on the court to exercise.
And so yeah, I think there's a lot to be
said for you know, what the states are doing and

(59:54):
that you know as much as uh, you know, I
love the federalists and whatnot. But yeah, maybe the anti
federalist will write about some things.

Speaker 2 (01:00:09):
Thanks, any other questions, all right, well, Lisa's coming up.
I think we have hit our allotted period of time.
It looks like four to four thirty is a break
and a book signing with Professor Calabresi and Professor Lawson.
But Lisa will tell.

Speaker 7 (01:00:26):
Us for sure. Yeah, thanks to our panelist,