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Leonard Leo, the key architect of the U.S. Supreme Court’s conservative majority, led the advisers who helped DeSantis reshape the state court
https://www.washingtonpost.com/politics/2023/06/20/gov-ron-desantis-used-secretive-panel-flip-state-supreme-court/
For decades, the ambitions of Florida’s Republican governors were stymied by the liberal-leaning state Supreme Court.
That is, until Ron DeSantis was elected.
The court let him erase a congressional district with a large Black population. It opened the door to a law making it easier to impose the death penalty. Now, it’s poised to rule on the governor’s plan to outlaw most abortions in the third-most-populous state.
The hard-right turn was by design. DeSantis seized on the unusual retirement of three liberal justices at once to quickly remake the court. He did so with the help of a secretive panel led by Leonard Leo — the key architect of the U.S. Supreme Court’s conservative majority — that quietly vetted judicial nominees in an Orlando conference room three weeks before the governor’s inauguration.
“So what I do is I convene a group of people that I trust — some people in Florida, some people outside of the state who you would know, who I’m not going to say, because you know, it’s private,” DeSantis later said on a conservative podcast. “Then they put these candidates through the wringer.”
After taking office in January 2019, DeSantis appointed three new justices in two weeks, flipping the court from what he described as a 4-3 liberal majority to a 6-1 conservative advantage.
More recently, two justices appointed by past Republicans stepped down and took more lucrative jobs with allies of the governor, allowing DeSantis to handpick his own stalwarts.
The governor’s efforts have yielded one of the most conservative state Supreme Courts in the country, reflecting Florida’s shift from a politically competitive state to a testing ground for culture war legislation over immigration, race and sex education that is now at the heart of DeSantis’s presidential bid.
He repeatedly points to his overhaul of the state court as a sign of how he would approach the judiciary if elected. He has called Justice Clarence Thomas “our greatest living justice” and pledged to move the U.S. Supreme Court even further to the right than President Donald Trump did.
In Florida, the governor’s confidential vetting process for the high court was one of the earliest examples of what would become a signature tactic of his administration — testing the boundaries of executive authority, while defying protocols aimed at transparency and accountability. It also foreshadowed the governor’s allegiance to the Federalist Society, the organization led by Leo that worked behind the scenes at the national level to build the conservative Supreme Court supermajority that overturned the right to abortion.
DeSantis’s “core is not the Bible. It’s not the Catholic Church. It’s the Federalist Society and its constitutionalist principles,” said John Stemberger, president of the Florida Family Policy Council, a religious conservative group that closely monitors judicial appointments.
The governor is battling to keep private the names of the other advisers who worked with Leo in a court case that could have sweeping ramifications for access to government records in Florida. But people familiar with the process, who spoke on the condition of anonymity to describe the confidential panel, confirmed several participants to The Washington Post. The elite group of conservatives included a former U.S. senator from Florida and Chris Kise, now a top member of Trump’s defense team in his classified records case. The panel grilled the judicial nominees about whether their principles matched those of the Federalist Society, which has pushed conservative and libertarian judges onto the nation’s courts through multimillion-dollar influence campaigns fueled by secret donors.
“That panel was truly unprecedented when you consider Florida’s tradition of government in the sunshine,” said Craig Waters, a lawyer who was the state Supreme Court’s spokesman for 35 years. “The result is a court that lacks diversity of viewpoints, and that’s very troubling in terms of checks and balances.”
DeSantis, who has denounced diversity initiatives in higher education and the corporate world, has nonetheless touted the gender and ethnic makeup of his judicial appointments, which have included two Hispanic men, two Hispanic women and one Black woman.
The governor’s office declined to answer questions from The Post about his judicial appointments and relationship with Leo. DeSantis has picked five of the seven justices currently on the court, the most of any governor in a generation. “A huge, huge legacy,” he said recently.
“As governor, Ron DeSantis took a state Supreme Court from being one of the worst in the country to probably one of the best in the country, if not the best,” Leo told The Post in a rare interview.
A shadow panel
DeSantis was at Harvard Law School when he joined the Federalist Society, a club founded in 1982 to challenge liberal ideology in legal academia. An archived page of the group’s website from the 2002-2003 school year shows a close-cropped “Ronald DeSantis” in a collared shirt among 22 first-year students.
Leo, the organization’s executive vice president at the time, came to speak to the group in April 2003, the site shows. It’s not clear whether DeSantis, who is now 44, attended, but the 58-year-old Leo has said they first met while DeSantis was a law student. They reconnected after DeSantis’s election to Congress in 2012; Leo donated to his campaign and helped fundraise for his leadership PAC, according to campaign records and an invitation obtained by The Post.
After DeSantis narrowly won election as governor in 2018, one of his first moves was to bring in Leo to help him replace the high court’s three most liberal justices, who were stepping down in accordance with the state’s mandatory retirement age of 70.
DeSantis’s approach departed from a process established in state law dating back to the 1970s, when a string of public corruption scandals led to the abolishment of “patronage committees” openly used by governors to install supporters on the court. Instead, nonpartisan judicial nominating commissions — with members chosen by the governor and the Florida Bar — were set up to screen applicants for circuit and appellate courts and make recommendations for appointments.
The changes ushered in a generally liberal state Supreme Court that lasted for decades. It rejected Republican proposals for taxpayer-funded vouchers for private schools, expanded casino gambling and a 24-hour waiting period before abortions. A law signed by Gov. Jeb Bush (R) in 2001 broadened executive control over the commissions and weakened the bar’s role, laying the groundwork for a conservative takeover.
Flipping the court “reduced a roadblock to getting my legislative agenda to ‘stick,’” DeSantis wrote in his book, “The Courage to Be Free.” “For years, the old liberal court had acted less as a judicial body than as a political council of revision, blocking conservative policy enacted by the legislature.”
As governor-elect, DeSantis received a list of 11 nominees the judicial nominating commission had chosen from a pool of 59 applicants in the final weeks of Republican Gov. Rick Scott’s term. He and Scott had a chilly relationship from the outset, and the governor-elect didn’t yet trust the sitting governor’s commission or its choices, according to people who spoke on the condition of anonymity to describe the confidential process.
So he turned to Leo for an ideological backstop. He had been a top adviser to Trump on judicial appointments, including for Supreme Court Justices Neil M. Gorsuch and Brett M. Kavanaugh. Rep. Matt Gaetz (R-Fla.), who helped lead DeSantis’s transition into office, said in an interview that DeSantis envisioned Leo leading a “concierge screening process” to recommend which of the 11 nominees to choose.
“It was just Ron and the Fed Soc crew, and they made it clear they didn’t need any other help,” Gaetz said. “Ron delighted in the intellectual heft Leo brought to the transition.”
Under Florida’s open government laws, the judicial nominating commission’s interviews with court applicants were advertised and open to the public. By contrast, when Leo and his unofficial panel met with the finalists in Orlando over two days in mid-December 2018, neither the press nor the public was invited.
DeSantis described to conservative podcaster Hugh Hewitt how the nominees faced Leo and the other advisers, who later offered their assessments: “They will go into a room, and you’ll have six or seven pretty big legal conservative heavyweights, and they have to answer questions. And I’m not there for that, but then I get debriefed by them, and then I’ll sit and do interviews with each individual candidate.”
Leo and the panel asked the finalists about interpreting the Constitution according to its original intent and without applying more-current social, political or cultural lenses, as the Federalist Society advocates, according to the people familiar with the process interviewed by The Post. Those principles of “originalism” and “textualism” have been cited by Federalist Society judges in courts across the country to strike down legal protections for women, racial and ethnic minorities, and the LGBTQ community.
“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,” DeSantis said in a Federalist Society speech in late 2019. “It 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.”
Soon after his inauguration, with the panel’s recommendations in hand, DeSantis established a new conservative supermajority on the court at the same time Republicans dominated the state legislature.
The governor publicly acknowledged Leo’s involvement months later. Two of the early judicial appointments, Barbara Lagoa and Robert Luck, confirmed Leo’s role in written testimony to Congress after Trump appointed them to a federal appeals court in 2019. Lagoa said Leo and the panel did not ask about how she would decide particular cases. “I do not know how that group was selected,” she wrote. Luck said he didn’t recall the questions from what he described as “an advisory committee” that included Leo.
After the governor’s office resisted disclosing the names of the other advisers, a lawsuit filed last fall accused DeSantis of breaching public records laws. In January, state Circuit Judge Angela Dempsey accepted DeSantis’s claim of “executive privilege.”
“To effectively discharge his constitutional duty, the Governor must be permitted to have access to candid advice in order to explore policy alternatives and reach appropriate decisions,” Dempsey said.
That ruling is being appealed. Government watchdogs worry that the governor could cite executive privilege to aggressively deny public records requests.
“We are entitled to know how the people on the court of last resort in the state of Florida, that hears the most important matters, were selected,” said Justin Hemlepp, a First Amendment lawyer representing the plaintiff.
But people familiar with the process identified a number of the panel’s members to The Post. They included Kise; George LeMieux, a former U.S. senator who is chairman of the board of a major Florida law firm; and Joe Jacquot, who served as deputy chief counsel for the U.S. Senate Judiciary Committee and went on to be general counsel to DeSantis. DeSantis in his book identified another participant he describes as a friend: Robert Giuffra, a nationally known litigator at a New York-based white-shoe law firm. Ben Gibson, a Tallahassee lawyer who has served as counsel to the Florida GOP, notes in his professional biography that he advised DeSantis on his first three judicial appointments as general counsel to the transition team.
The group’s backroom conversations with the nominees tainted the process, according to Mary Adkins, a professor at the University of Florida Levin College of Law who has studied the state Supreme Court. “If the public isn’t watching, we don’t know what kind of information they’re getting and passing along to the governor. So it kind of subverts the purpose” of the judicial nominating commissions, Adkins said.
Kise was the only adviser reached by The Post who would comment about the interviews. “The process was a very fair and effective process, and the governor selected three outstanding jurists,” Kise said.
Jason Unger, a Republican lawyer who led the official judicial nominating commission when DeSantis was elected, said he wasn’t aware at the time that DeSantis was also seeking advice from Leo and others. But he said that was the governor’s prerogative.
“It was perfectly normal and appropriate for him to reach out to lawyers he knew and respected to help with the vetting process,” said Unger, who served on the official commission from 2008 to 2019, under three governors.
Handpicking justices
Early in his first term, DeSantis had built the clear conservative majority he’d sought on the state Supreme Court. But with several justices appointed by his Republican predecessors still serving, it wasn’t fully DeSantis’s court yet.
That would soon change.
Justice Alan Lawson announced his departure in April 2022, shortly after his colleagues chose one of the governor’s new appointees for chief judge. Lawson, a Scott appointee, went on to launch a law firm with Jason Gonzalez, a top adviser to DeSantis on judicial appointments.
In a recent podcast interview, Gonzalez said Lawson told him he was among the first to know he was stepping down from the court.
“He gave me the opportunity to go tell the governor, which was a nice honor that he gave me,” Gonzalez said. “Of course, the governor gets to appoint his replacement. So I knew he’d be excited to know that.”
Gonzalez, who said in the podcast that he met DeSantis years ago through the Federalist Society, did not respond to requests for comment.
Lawson, 62, said in an email to The Post that after a long career in state government, he left the court of his own volition. “This was a very personal decision and was made without the pressure of any outside influence,” he said, adding that he decided to help start the firm after a three-month sabbatical.
DeSantis secured another opening when Justice Ricky Polston, 67, resigned this year — just a few months after seeking and winning a new six-year term, as judges appointed by the governor must periodically do to keep their seats. Polston, who had been appointed by Republican Gov. Charlie Crist, was recruited to work as general counsel for the state-backed Citizens Property Insurance Corp. by its new chief executive, Tim Cerio. Cerio is also a DeSantis appointee to the judicial nominating commission, which would help pick Polston’s replacement. Polston declined to comment.
Cerio said in an interview that the governor and his allies had no role in his efforts to lure Polston off the court. “That was my idea. I recruited him,” he said.
DeSantis used Lawson’s retirement to install Renatha Francis, a Jamaican-born circuit judge he had tried to add two years earlier. In response to a legal challenge, the high court had unanimously rejected her because she had not been a Florida Bar member for 10 years as required. DeSantis allies point to the decision as evidence of the court’s independence.
The governor successfully added her to the court in 2022 after she had crossed the bar threshold.
In his book, DeSantis wrote about looking for judicial nominees unpopular with the professional bar, legal academia and the media. “I insisted on justices who were willing to reject these elite influences, and I hoped for nominees who would relish defying them.”
Polston’s vacancy initially attracted only three applicants. Longtime prosecutor Victoria Avalon, who was among 15 applicants after the deadline was extended, bluntly told the commission in her May interview that the apparent lack of interest reflects a widespread impression that DeSantis had already settled on a favorite. “I am not throwing shade at the judiciary, but that is the perception on the street,” Avalon, who has unsuccessfully applied to be a judge several times, said in an interview.
Fred Karlinsky, the commission’s current chairman, declined to comment.
A conservative court
With its new right-of-center majority, the Florida Supreme Court has repeatedly enabled DeSantis’s political agenda — and soon will decide his legacy on abortion rights.
In the lead-up to the 2022 midterms, the governor proposed a congressional map that expanded the number of Republican-friendly seats and eliminated a northern Florida district represented by a Black Democrat. The map was challenged by voting rights groups that argued it would dilute the power of Black voters, but the court declined to interfere.
More recently, DeSantis signed a law reducing the number of jurors needed to recommend a death sentence to the lowest threshold of any state with capital punishment. The law followed a series of court decisions making it easier to impose the death penalty, including the reversal of a ruling requiring a unanimous jury.
The court also did away with long-standing protocols requiring judges to take courses in diversity and fairness, describing them as “overbroad” in a ruling at the same time the governor was cracking down on similar efforts in higher education.
Barbara Pariente, one of the three liberal justices who retired after DeSantis took office, blamed what she called the current court’s lack of “respect” for precedent on a clubby appointment process.
“Our method of selecting justices and other appellate judges has gone from a merit-based system to a much more political one that’s influenced by a view of judicial decision-making that favors those in power who are willing to agree with the governor’s agenda,” Pariente said.
But to hard-line conservatives like Stemberger, who worked for decades to replace what they viewed as the “activist” liberal majority with conservative justices rooted in the antiabortion movement, “it’s become the court of our dreams.”
Under DeSantis, the court has impaneled statewide grand juries useful to the governor as political ammunition. The juries are typically approved by the high court and overseen by a statewide prosecutor picked by the attorney general — currently Republican Ashley Moody, a DeSantis ally.
In 2019, DeSantis requested a grand jury to investigate security failures surrounding the 2018 mass shooting at a Parkland, Fla., high school; he later cited its report in suspending four Democrats on the Broward County School Board. A 2023 grand jury report blasted President Biden’s immigration policies and laid the groundwork for more-stringent penalties DeSantis recently signed into law.
The governor last year requested a grand jury to probe alleged fraud by coronavirus vaccine manufacturers, arguing that the vaccines were falsely advertised as preventing transmission. In fact, the companies touted studies showing the shots were effective at blocking symptoms and preventing serious illness.
Previous governors sought grand juries to investigate more wide-ranging issues of insurance, health care and securities fraud, but the process has become more politicized under DeSantis, said Jacksonville lawyer Hank Coxe, a former Florida Bar president.
“The creation of the statewide grand jury system was to identify and eliminate organized criminal activity,” he said. “Its current use does the original legislative intent an injustice.”
In coming months, the court will rule on a law DeSantis signed last year that outlaws abortions after 15 weeks. A six-week ban he approved this year after the U.S. Supreme Court overturned Roe v. Wade also hangs in the balance. For decades, the state court has affirmed that an unusually explicit privacy clause in the Florida Constitution protects the right to abortion. Even its chief justice, Carlos Muñiz, whose appointment by DeSantis was hailed by religious conservatives, once wrote that one purpose of the privacy amendment was to buttress the right to abortion.
“That case is going to be a very important indicator of where the court’s going,” said Neil Skene, author of a 2017 book on the high court. “It will be seismic in terms of abortion rights and women’s rights and to see how this court approaches the reversal of a major constitutional precedent.”
On the presidential campaign trail, the court makeover is a major talking point for DeSantis. “We now have the most conservative state Supreme Court in the United States,” he said to loud applause at a recent event in Cedar Rapids, Iowa.
DeSantis also has pointed to the judiciary to draw distinctions with the Republican front-runner. He said last month that unlike Trump, who could serve only one more term, he would “have the opportunity to fortify” a far-right court over eight years. And this month, he said he would one-up Trump’s appointments to the U.S. Supreme Court.
“I would say we’ll do better than that,” DeSantis told Hewitt in another podcast episode. “I respect the three appointees he did, but none of those three are at the same level of Justice Thomas and Justice Alito. I think they are the gold standard.”
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