The new(er) Florida Supreme Court, and Federal Judges in the Sunshine State

This post is an update to one I posted in June.

First, I should acknowledge how poorly this statement has aged.

"It’s safe to say that if additional seats crop up on the Florida federal district courts within the next year or two, the state supreme court finalists will seek those positions, as no seat on the Florida Supreme Court is expected to open up anytime soon."

Before the summer, I didn't believe that an Eleventh Circuit judge from Florida, let alone two, would take senior status in the coming months, and was skeptical of Justices Barbara Lagoa and Robert Luck being elevated so quickly, even if vacancies arose.

In Florida, the state practices a version of the Missouri Plan, in which a commission recommends candidates for judgeships to the governor.

The Florida Supreme Court now has two vacancies, with the elevation of Justices Lagoa and Luck to the Eleventh Circuit. If we only look at those who were on the last list (excluding the three previously appointed and a pending federal district court nominee) presented to Gov. Ron DeSantis (R) by the state's Judicial Nominating Commission, they are:

1. John Couriel, a partner at Kobre & Kim
2. Jonathan Gerber, Chief Judge of the Fourth District Court of Appeal in West Palm Beach
3. Jamie Grosshans, Judge of the Fifth District Court of Appeal in Daytona Beach
4. Jeffrey Kuntz, Judge of the Fourth District Court of Appeal
5. Bruce Kyle, Judge of the Lee County Circuit Court
6. Timothy Osterhaus, Judge of the First District Court of Appeal in Tallahassee
7. Samuel Salario, Judge of the Second District Court of Appeal in Lakeland

With that being said, DeSantis has appointed some new members to the JNC, so additional people could be added to the list. In particular, I'd keep an eye out for state solicitor general Amit Agarwal, who was previously chief of the appellate section in the Southern District of Florida U.S. Attorney's office and clerked for Justice Alito earlier in his career.

Florida's Constitution mandates that the territory covered by each District Court of Appeal must have at least one justice on the Supreme Court, and with Lagoa and Luck gone, one of the new appointees must hail from the Third District (Miami-Dade and Monroe Counties). On the old list, only Couriel meets that criteria, but Agarwal might as well.

Lagoa was also the only woman on the court during her tenure, and I'd expect Governor DeSantis to appoint at least one woman this time around. That means Judge Jamie Grosshans is also a prime contender for elevation.

Florida's federal district courts are down to three vacancies, and two of those don't have nominees yet.

The one pending nominee is Broward County Circuit Judge Anuraag Singhal, who's been nominated to the Fort Lauderdale vacancy in the Southern District of Florida. He came out of committee in October, and should be confirmed in the coming months.

I'll stick to my previous predictions regarding the other vacancies, with the caveat that some Assistant U.S. Attorneys might be under consideration as well. Unfortunately, Senators Marco Rubio (R) and Rick Scott (R) have been less transparent with their judicial selection process than past Florida senators, so it's hard to know for sure.

Update # 1 (11/20/2019): Thanks to a Florida lawyer for correcting me about Amit Agarwal's eligibility for a judicial appointment. Article V, Section 8 of the Florida Constitution mandates that all state supreme court justices must be members of the Florida bar for at least ten years prior to appointment. Agarwal was admitted to the Florida bar in 2016, and thus he is not eligible for appointment to the court.