Ron DeSantis

DeSantis to Federalists: ‘My swamp is warmer than your swamp!’

With two looming Florida Supreme Court appointments on the horizon, Gov. Ron DeSantis pontificated about judicial overreach, congressional abdication of power, and “originalism” during a speech to The Federalist Society’s National Lawyers Convention last week.

DeSantis pointed out that, in what will be a little more than a year on the job, he will have appointed five justices to the Florida Supreme Court, comparing it to the record of predecessors Jeb Bush and Rick Scott, who together tapped just three justices in their combined 16 years in office.

“Sometimes these things just happen. I think it’s neat,” the Harvard Law School alum told the crowd at the Mayflower Hotel in Washington, D.C. on Thursday.

The governor’s speech begins around 15:45 in the video, or you can jump to the transcription below

President Donald Trump nominated Florida justices Robert Luck and Barbara Lagoa to the 11th U.S. District Court of Appeals, and the Senate is set to confirm Luck later today. Lagoa’s confirmation is expected to come shortly.

DeSantis, who served briefly in Congress before launching his gubernatorial bid last year, began his remarks, as all well-versed speakers do, with a few cracks.

“I am a recovering congressman so people ask me if I’m happy to be out of D.C.,” he said. “Of course I’m happy to be out of D.C. and my swamp is warmer right now than your swamp is. It’s about 75 degrees in Palm Beach.”

The governor, who noted that he had help from the Federalists when making his Supreme Court selections, focused his speech on originalism, a topic that left DeSantis at ease as he rattled off his concerns about the failures of all three branches to properly implement the founding fathers’ intentions.

Originalism and textualism — the concept of applying the Constitution based on the intent of the writers of the document at the time they wrote it — “is the right way to do it,” DeSantis said, referring to court appointments.

“The reason why I think that’s the right way to do it is because you have to have some objective measure to go by. You can’t just be flying off the seat of your pants, philosophizing and imposing whatever idiosyncratic views you have on society, under the guise of constitutional interpretation,” he said. “So originalism provides a mechanism to cabin judicial discretion, which I think is very, very important.”

In his 20-minute speech, the governor demonstrated his Yale and Harvard wonkiness while waxing about Hamilton, Madison and the Federalist papers.

DeSantis said one of his biggest frustrations in Washington was Congress’ reluctance to exercise its power.

“I think the founders were pretty clear about how the constitutional system was arranged and would operate.

You had three separate branches. One branch was not necessarily subordinate to the other, so when they say they were equal, in that sense, they were. But they certainly were not equal in terms of the powers that were assigned to the branches.

There was qualitative and quantitative differences between the branches. Clearly Madison said the legislative authority predominates in a republican system of government.

If you look at the powers assigned in Article 1 of the Constitution, I mean the power of the purse. The executive can do what they want. You take away the money, the executive can’t do it. So the Congress had robust powers and I think the founders viewed the Congress as the focal point in constitutional government.

They thought the executive would have an important role, but that would really depend on the exigencies. Obviously, if you’re engaging in any type of military conflict, the president’s commander-in-chief, in foreign affairs the president had a very important role.

But, ultimately, even though the president could veto acts, the legislature could check that veto by overriding the veto.

So the president was important, but they also had just rebelled against the king and so they did not envision the exuecitve sas it is today with the massive bureaucracy.

And then of course they thought the courts were important but, as Hamilton said, by far the weakest of the three branches, because it could exercise neither force nor will but merely judgment.

It ultimately depends on the executive to enforce its judgments.

So that was kind of their view.

The court will play a role, but it will not be the dominant role in the constitutional system.

Well, I think today, having served in the Congress, to me, Congress is by far the weakest of the three branches.

Its most robust power — the power of the purse — it effectively has just put on autopilot. A lot of the spending is just automatic anyways, and then the rest they use continuing resolutions to just basically perpetuate government and perpetuate the status quo.

Very rarely are they actually using the power of the purse to discipline the executive branch, to rein in any type of executive overreach. And that is true, regardless of who’s in, which party or the other has been in.

So you have a really neutered legislative branch.”

Here’s the rest of his speech:

“Really, I did more in one week as governor than I did in six years in Congress. And I was active. I worked hard. It’s just, they don’t use the authority they have in an effective way and I think the constitutional system is discombobulated as a result.

Of course, the executive branch, when you look at what the president is able to do, some of that is just circumstances. We’re more involved internationally …

Most of the people that come to see me in Congress that had a problem with something with the federal government did not have a problem with anything we were actually passing in Congress. It was the agencies that were doing this and doing that. So most of the lawmaking was being done by the executive branch agencies.

So you had a massive bureaucracy grow and you had the the executive function really exercising both legislative and in some cases judicial powers, which is not something the founders would want to do..

Then you have the court which, in some respects, in some instances, I think, sees itself as being almost superior to the other branches and superior to the Constitution itself, even, and has gotten involved in a whole host of diff things that I think they probably had no jurisdiction to deal with.

But certainly the court has more of an impact than the Congress, day in and day out, even accepting only 80 cases a year.

So that’s kind of the system. It causes me to reflect.

I think it’s great you have two supreme court justices here, all these circuit judges, but the fact that that is viewed as a major achievement to me suggests that the courts are exercising too much power in the first place.

Joseph Story, I think he was confirmed within five days. Stephen field, cduring the civil war, Lincoln nominates him, within a week he’s confirmed. …

The fact that we have all these titantic struggles about who sits on that shows that the court is playing too big a role in our society.

There’s some that say, if we get enough originalists on the Supreme Court and the lower courts, then everything can be made right, and everything will be good.

I think that would be beneficial, don’t get me wrong.

But I have to think back to Federalist 51. The whole premise of the system is you’re not going to have the right people in the positions of power. That’s why they designed the system the way they did. Because they said that if angels were to govern men, then no government would be necessary.

That is something that the founders believed at their core — that you had to have a system of checks and balances to keep each branch in line.

So for me, I want to see great judges. I think that’s important. But I also want to see a system that works, even when you have the wrong people in power.

I think judicial power is too robust right now and I think the checks upon it are just simply inadequate.

Part of it is you can go back to the original design and see the checks on it, but also the checks that are there really aren’t used by the Congress any more.

One of the areas … that brings this into focus is the use of these nationwide injunctions by one district judge.

You have a national policy that’s put in place by the executive branch and then you have a flurry of lawsuits. So the executive wins in Boston. They win in New York. They win in Atlanta. They win in Minneapolis. They win in Las Vegas. But they lose in San Francisco. And so, guess what?

You win all those other ones, you lose in San Francisco, so the whole policy is put on ice? We could sit there and say, oh yeah, these are just rogue district judges. They’re part of the legal resistance. They’re resisting Trump and all this stuff and the Supreme Court will correct it. They have corrected a lot of these. And that is true. But what happens in the meantime?

You’ve got like two years that goes by where the policy is frozen, just because you have one district judge that puts it on hold? To me, one district judge issuing a nationwide injunction is not a legitimate use of judicial power. I’d like to see the U.S. Supreme Court rein that in.

But I think there’s probably things Congress can do to rein that in.

But that’s just the thing. The checks that are there – jurisdiction-stripping – hasn’t proven to be that effective.

Hamilton said, if a judge gets off the rails, he’ll get impeached and removed from office. That hasn’t proven to be successful.

In the Federalist, Hamilton suggests that if the judges get off the rails then the executive will just let that decision go but not really enforce it…

But I think that we’re in a situation now where whatever institutional counteraction that the founders envisioned, that’s just simply overwhelmed by the partisan interests that you see now in national politics.

There may be something that’s detrimental for your branch, but if that’s more for your team in the partisanship is going in a good direction, then you’re willing to see your own branch diminished in order to achieve the more partisan ends.

And that goes with both sides. But I think the founders believed that where you sit was where you were supposed to stand, when it comes to institutional power.

But that’s not really where it is. You do not see a robust defense across party lines of Congress’s prerogatives, of the executive’s prerogatives, when those prerogatives are challenged. It’s all situational. So the Congress really cares about its law-making authority when President Obama is doing some of these more legislative in nature executive orders but the same people that didn’t care about that, they now care about it when the president’s different, and vice versa.

So that to me is something that’s not going to be an effective check.

I think back. Lincoln, he had to confront the Dred Scott decision, which was obviously one of the worst cases the Supreme Court has ever decided.

And in his inaugural address, he said that if you have the whole policy of the whole country decided by the Supreme Court based on one lawsuit between two parties, then the people are no longer their own rulers. They’re essentially turning over thieir authority to this eminent tribunal.

Dred Scott said you cannot prohibit slavery in the territories. Well, the whole republican party was founded to prohibit slavery in the territories. So that’s kind of like saying that the Republican party itself was unconstitutional at the time.

So Lincoln, they went ahead and they did ban it, in 1862, in spite of Dred Scott.

But Lincoln had to wrestle with this before he was president.

So he said, OK, if a decision’s made, if we just don’t honor any decision, then you just have lawlessness. So he always honored it with respect to the parties and the case in Dred Scott.

But he said I’m just not ready to say that this settles the policy for the whole country infinitum.

And he went through different factors in his judgment. He believed that a unanimous decision carried more weight than a split decision. I think Dred Scott was 7-2. He said that if a decision broke down on party lines, then he’d be less likely to say that that settled policy for the whole country. And then he said if it was a novel interpretation that was at odds with how previous branches had viewed it — for example, Congress had enacted a lot of legislation that presumed they had the authority to regulate slavery in the territories — that that would be something he would consider.

But this was something that he really, really struggled with.

I don’t suggest that there’s easy answers to it. But what I would like to suggest is that in our system of government, it’s the constitution that is supreme. It’s not the judiciary that is supreme. Courts are part of the constitutional system but they do not hover above the constitutional system. And the more serious that other political actors take their role, I think the stronger our constitutional system will be.

So the point I’ll make is, originalism, I think is important to figure out how you do constitutional interpretation, how you apply legislative text, but also I consider originalism to be the structural constitution and how different people who are actually in these branches are going to use their authority to preserve their own institutional interests.

If we say originalism is only about interpreting a statute or only about interpreting the bill of rights, then I think we’re leaving so much on the table. And ultimately, even though an originalist judge I think would be more respectful of the separation of powers than a non-originalist judge, we’re kind of tacitly still saying that the judiciary is superior to the other branches of government. I don’t think that’s what the founding fathers envisioned. And I don’t think that’s what’s the best for the country.

So members of Congress, if I was still there, I would tell them to take their obligations to protect their institution seriously, and the same thing with the executive branch.

True originalism means all these branches checking and balancing each other just as the founding fathers intended.

 

 

It’s pythons vs. hogs, as Gators face off against Dawgs

Pigs and pythons are on the line as the Gators vs. Bulldogs clash Saturday afternoon in Jacksonville.

After much teasing throughout the week that a gubernatorial bet was in the works for the gridiron clash between the 6th ranked University of Florida and 8th ranked University of Georgia, Florida Gov. Ron DeSantis and Georgia Gov. Brian Kemp tweeted out videos of what they were putting on the line.

A UF victory means the governors would head to the Everglades to help hunt Burmese pythons.

“We need the help. We’re making progress. But I’d love to see the Gators win and Gov. Kemp come down there. And who knows, you may end up with a pair of python boots on the end of it,” DeSantis said in his video.

A Georgia win, meanwhile, sends DeSantis into Southern Georgia, where feral pigs are infesting area farms.

“I know that wild hog sausage is a lot better than python,” Kemp said.

Kickoff is at 3:30 p.m.

By NSF’s relentless Jim Turner.

DeSantis: Israel has “total right” to run again, “no similarities” between sheriff suspension and Trump impeachment

IMG_2094A day after a key Senate committee handed Gov. Ron DeSantis a major victory in his crusade against embattled Broward Sheriff Scott Israel, the governor pooh-poohed any parallels between his suspension of Israel and Congressional Democrats’ efforts to unseat President Donald Trump.

DeSantis, Trump ally whose endorsement by the Republican president help boost him to a primary election victory and ultimately into the governor’s mansion last year, also told reporters today that Israel, a Democrat who is running for re-election, has the right to seek office again.

During yesterday’s Senate Rules Committee, one of Israel’s supporters, who identified himself as a “lifelong Republican” who voted for the GOP governor, equated suspension of Israel — an elected official — to the ongoing impeachment effort.

Rules Chairwoman Lizbeth Benacquisto quickly shut down that argument, but a reporter asked DeSantis about any similarities after Tuesday morning’s Cabinet meeting.

“I see no similarities between a presidential impeachment and the removal of a county official. This is a provision of the Florida Constitution. It talks about neglect of duty or incompetence. Obviously, we’ve seen multiple failures out of that agency. In fact, that agency, under his leadership, lost the state certification, and now it’s being reinstated under the new sheriff,” DeSantis said. “Look, had we not acted, my fear was that more failures would have put more people at risk. So I think I acted appropriately and I think that the Senate ultimately will come to that conclusion.”

The Rules Committee overturned the recommendation of Senate Special Master Dudley Goodlette, who found the governor failed to present evidence supporting his decision to suspend Israel, one of DeSantis’ first actions after taking office in January. Goodlette, former Republican state representative who is highly regarded in legislative circles, recommended that the Senate reinstate the embattled sheriff.

But voting 9-7 along party lines after a marathon meeting yesterday, the Rules Committee supported the governor’s suspension. The full Senate will vote on the matter tomorrow at 2 p.m.

Speaking to reporters Tuesday morning, DeSantis thanked the committee, which heard emotional, heart-wrenching pleas from the families of the Marjory Stoneman Douglas High School mass shooting victims. The families are united in their insistence that Israel be prevented from getting his old job back. Dozens of Israel supporters also attended the meeting, including numerous members of black churches who expressed their allegiance to the sheriff.

“It was a very long day, with that process,” DeSantis said Tuesday. “I also want to thank the Parkland families for coming. It wasn’t easy for them. This has been a long time coming. I think they really showed a lot of strength, and I look forward to the Senate disposing of this matter tomorrow, and look forward to moving on.”

The expectation is for another, party-line vote in the Republican-dominated upper chamber that will result in Israel being permanently ousted from his job.

Israel, who was re-elected in 2016 by more than 70 percent of Broward County voters, remains popular in most parts of the heavily Democratic county. He told reporters after the Senate committee vote last night that he believes he will be re-elected to the seat he held until he was booted by DeSantis in January.

DeSantis was asked if he would remove Israel again, should the sheriff win re-election.

“No, no, no, no. Look, the people can make that decision going forward. But then, what happens will be, they’ll be responsible for whatever decision is made in that respect. It’s not going to be something that is going to matter to me either way. I had to make the decision I had to make. Those folks can make whatever decision that they want to make,” the governor said.

When pressed about removing Israel a second time, DeSantis — a Harvard Law School grad — reiterated his stance.

“Well, obviously if there was another basis, but no. This is this. If the Senate does concur he be removed, there’s nothing in the Constitution that bars someone from then seeking the same office again. Totally has a right to do it,” he said.

 

Luck, Lagoa on track to leave Florida Supremes

Florida Supreme Court Justices Barbara Lagoa and Robert Luck, en route to the U.S. Circuit Court of Appeals for the 11th Circuit, received a friendly vetting Wednesday by a Senate committee.

President Donald Trump tapped the two Florida justices for the Atlanta appeals court just months after Gov. Ron DeSantis named them to serve on the Sunshine State’s highest court.

“Justices Barbara Lagoa and Robert J. Luck faced little pushback from members of the Senate Judiciary Committee during their nomination hearing Wednesday morning, as they fielded questions about “judicial activism” and how they would approach precedent as members of the federal judiciary,” The National Law Journal reported Wednesday.

If Lagoa and Luck get the go-ahead to join the appellate court, as is widely anticipated, DeSantis will have the opportunity to appoint two new state court justices to take their place.

That would put the governor in the rare position of appointing five Florida Supreme Court justices in his first term as the state’s chief executive.

The Judicial Nominating Commission is responsible for delivering a list of names to the governor to fill the vacancies.

But that process won’t kick in until Luck and Lagoa officially leave the bench after being confirmed by the Senate, a process which could drag on until December.

Once the vacancies occur, the JNC has 60 days to give a list of possible replacements to the governor and DeSantis will have an additional 60 days to make his choices.

 

New DOAH chief stamps Federalist brand on judge search

tumblr_p01k8iW2pT1tt2fafo1_1280John MacIver has been on the job for just a week, but the new chief judge at the Division of Administrative Hearings is already putting a Federalist Society spin on the joint.

Gov. Ron DeSantis and two Republican members of the Florida Cabinet — Attorney General Ashley Moody and CFO Jimmy Patronis — last week appointed MacIver to take over as head of DOAH, the go-to place for citizens and businesses to redress grievances against state agencies.

MacIver was admitted to The Florida Bar six years ago, and he’s the head of the local chapter of the Federalist Society, the conservative group that supports a “textualist” or “originalist” interpretation of the U.S. Constitution.

“The best place where improvement can be made is in the culture of judicial philosophy at DOAH,” MacIver told the Cabinet last week, responding to a question posed by Moody.

MacIver pointed out that, since DeSantis, a Harvard Law School graduate, has taken office, the governor has appointed judges who “respect the separation of powers, respect the rule of law, follow the text of the law based on its common understanding.”

Florida businesses, citizens and legislators, who craft laws, need to have “some predictability in the law” and shouldn’t be “subject to the whim” of judges who have their own policy preferences, MacIver said.

MacIver’s Federalist approach — and his lack of experience — drew some backlash from Democrats, including Ag Commissioner Nikki Fried, who voted against him, and several legislators.

MacIver, whose post requires Senate confirmation, meanwhile appears to have launched the DOAH makeover, as noted in a call-out to the Bar’s Administrative Law Section yesterday.

In an email to Brian Newman, the section’s chairman, MacIver wrote that he’s seeking “resumes for several vacant Administrative Law Judge positions,” and asked Newman to spread the word.

Minimum qualifications for ALJs is five-year membership in the Bar, MacIver noted.

“Additionally, and crucially, I will be seeking applicants who can show a commitment to faithfully upholding the rule of law,” he wrote (we added the emphasis).

Here’s the full text of his message to Newman:

Greetings Mr. Chair:

Please share with your membership my request for resumes for several vacant Administrative Law Judge positions. The official application is available through people first, but I am also accepting resumes and cover letters at Recruiting@Doah.state.fl.us. The minimum qualification to serve as an Administrative Law Judge is 5-years membership in the Florida Bar. Experience in administrative law and trial practice is highly valued. Additionally, and crucially, I will be seeking applicants who can show a commitment to faithfully upholding the rule of law. I expect the positions to be very competitive, but I’m asking for your help to discourage your members from self-screening their own applications. One of your members might have the unique combination of attributes that would make a perfect Administrative Law Judge—including the humility to think that they don’t—please encourage them to apply.

Respectfully yours,

John MacIver

Director and Chief Administrative Law Judge

Right now, it appears that there is one vacant ALJ position, but several other ALJs are nearing retirement age.

Latest installment in Morgan v. Gillum feud: ‘Massa mentality’ and shaming

For the second day in a row, Orlando trial lawyer and political kingmaker John Morgan and Florida Democratic gubernatorial nominee Andrew Gillum are going mano-a-mano on social media.

The feud between the two escalated Wednesday, when Morgan, during an appearance at a Tiger Bay Club luncheon in the capital city, threatened to sue the former Tallahassee mayor, if Gillum ever runs for office again.

Morgan told the crowd of political insiders that he believes he has a “cause of action” against Gillum over his decision to leave more than $3 million in the bank ahead of the 2018 November election. Gillum narrowly lost to Republican Gov. Ron DeSantis.

After Morgan’s remarks to the Tiger Bay Club in Tallahassee garnered headlines on Wednesday, Gillum — who’s been trading barbs with Morgan on Twitter throughout the summer — took the fight to a new social media platform: Instagram.

“John Morgan suffers from what I like to call the ‘Massa’ mentality. A condition where your wealth and ‘supremacy’ deludes you into thinking that you own people,” Gillum wrote in a Thursday morning, alongside a post of a News Service of Florida story entitled “Morgan Warns Gillum Not to Run Again.”

Gillum added in the Instagram post: “He may own many slaves, but I am not one of them.”

Morgan fired back on Twitter and on Instagram three hours later:

@AndrewGillum if you gave someone $250K to build an orphanage & instead they kept the money to promote themselves I think you would be outraged!! That’s what is happening here. I don’t have slaves, but I am fighting to eliminate slave wages in Florida. My people make $15/hr. You really should be so ashamed of what you did. #FollowTheMoney 💸

When one of Gillum’s Instagram followers asked him about the unspent campaign money, Gillum — who’s now a CNN contributor — provided a lengthy response:

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— By Ana Ceballos.

 

 

Sotomayor: Florida death penalty rule ‘Kafkaesque’

Franz_Kafka_1917U.S. Supreme Court Justice Sonia Sotomayor signed off on a recent decision denying a stay of execution for Gary Ray Bowles, a serial killer who targeted gay men, before Bowles was put to death shortly before 11 p.m. Thursday.

But Sotomayor hinted that the state’s rules may need to be revisited.

Here’s an ABA Journal article breaking down Sotomayor’s statement:

U.S. Supreme Court Justice Sonia Sotomayor expressed concern last week about a Florida procedural rule that makes it difficult for death-row inmates to assert claims that their mental disability is a constitutional bar to execution.

Sotomayor called the rule “Kafkaesque” in a statement on cert denial for Gary Ray Bowles, a serial killer who targeted gay men, report Bloomberg Law, the Daytona Beach News-Journal and CNN. Bowles was executed Thursday.

The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that executions of mentally disabled inmates violate the Eighth Amendment.

In Hall v. Florida in 2016, the U.S. SuprU.eme Court struck down Florida’s bright-line IQ threshold for asserting a mental disability that would exempt inmates from execution. The Florida Supreme Court ruled that same year that the Supreme Court decision applied to prisoners sentenced before the 2016 Supreme Court ruling.

But the Florida Supreme Court has also held that inmates claiming retroactive protection under Hall must have asserted an earlier claim of intellectual disability based on Atkins. Bowles didn’t raise his claim of intellectual disability until 2017, according to an Aug. 13 Florida Supreme Court decision denying his claim.

Sotomayor criticized Florida’s requirement for inmates to have asserted an intellectual disability claim before the Supreme Court overturned Florida’s bright-line IQ rule. Under the rule, Florida did not consider an inmate to be mentally disabled unless he or she had an IQ of 70 or below. Bowles had prior IQ test scores of 74, 80 and 83.

“This Kafkaesque procedural rule is at odds with another Florida rule requiring counsel raising an intellectual-disability claim to have a ‘good faith’ basis to believe that a death-sentenced client is intellectually disabled (presumably under the limited definition of intellectual disability that Florida had then imposed),” Sotomayor said.

Sotomayor also said Florida’s procedural rule “creates grave tension with this court’s guidance in Montgomery v. Louisiana,” a 2016 Supreme Court decision giving retroactive effect to an earlier decision barring mandatory life in prison without parole for juveniles.

Sotomayor said Bowles’ cert petition raised an Eighth Amendment claim but did not address concerns based on Montgomery.

“Because I do not believe that the questions as presented merit this court’s review at this time, I do not disagree with the denial of certiorari,” she said. “In an appropriate case, however, I would be prepared to revisit a challenge to Florida’s procedural rule.”