From Tampa Bay Times:
Once-ousted Tampa judge not among finalists for Florida Supreme Court vacancy
Hillsborough County voters ousted Judge Jared Smith in 2022 after an uncharacteristically contentious campaign that followed his controversial ruling in an abortion case.
On Monday, he talked about how the bruising experience gave him courage of his convictions as he vied for a seat on Florida’s highest court.
“It’s definitely encouraged me to not be afraid to make those tough decisions,” Smith, now an appeals court judge, told members of the Florida Supreme Court Judicial Nominating Commission.
Smith was one of 10 people who trooped one after another into Tampa’s largest courtroom to answer questions as they sought to fill the vacancy created by the departure of Justice Charles Canady.
The commission on Tuesday released a list of finalists, whose names were sent to Gov. Ron DeSantis.
Although Smith did not make the cut, his interview offered a retrospective look at how the controversy shaped him and underscored the conservative theme of the proceedings.
Whomever gets the nod will solidify the governor’s grip on the high court. With the latest appointment, DeSantis will have picked all but one of the sitting seven justices. He is credited with having shifted the court in a decidedly rightward direction.
Monday’s interviews suggest the trend will continue, with the slate of candidates voicing similar philosophies.
All the nominees are white men. All but one are current or former judges, most of them appointed by DeSantis. Some in their careers have grappled with cases and controversies that bore hefty political overtones.
Smith, whom DeSantis appointed to the Lakeland-based 6th District Court of Appeal after his election loss, came under intense public scrutiny while serving as a trial judge for an order in which he ruled a teenager lacked the maturity to obtain an abortion without her parent’s permission.
The ruling, which was overturned on appeal, drew the ire of reproductive rights advocates and an election challenge against Smith from Tampa attorney Nancy Jacobs.
“Certain individuals told me I needed to get out of the judicial race and let my opponent win,” Smith said. “If I didn’t, I would face dark political money that would smear my reputation.”
Smith sat before the commission in a cavernous courtroom where his portrait hangs among those of other former Tampa judges. He told the commission it’s not in his nature to back down.
Jacobs beat him in a bitterly contested campaign that carried partisan overtones and saw accusations of misconduct from both candidates.
Jacobs later resigned the bench after a state disciplinary commission recommended her removal, partly for her conduct during the campaign. Smith, meanwhile, was elevated to the appeals court.
Jacobs beat him in a bitterly contested campaign that carried partisan overtones and saw accusations of misconduct from both candidates.
Jacobs later resigned the bench after a state disciplinary commission recommended her removal, partly for her conduct during the campaign. Smith, meanwhile, was elevated to the appeals court.
“There is a time for courage now, more than has ever been needed in our country,” Smith said.
John Guard, who made the list of finalists, was among the more prominent nominees appearing before the commission. He is the chief counselor to Florida Attorney General James Uthmeier.
Last summer, President Donald Trump nominated Guard to a federal district court vacancy. He also was one of six lawyers who applied for a vacancy on the Tampa Bay-based 2nd District Court of Appeal.
The Tampa Bay Times reported in August on Guard’s connection to the political controversy surrounding the Hope Florida Foundation, a scandal that has dogged DeSantis. Guard was involved in approving a Medicaid overbilling settlement that diverted millions to Hope Florida.
The money was then moved to a political committee controlled by Uthmeier, who was then DeSantis’ chief of staff. A criminal investigation is ongoing.
U.S. Sen. Rick Scott expressed interest in questioning Guard about his involvement in the settlement. Guard’s federal judicial nomination has not moved since last summer.
“I don’t know why my nomination has not gone through,” Guard told the commission.
In his Supreme Court application, Guard wrote that an investigator from the State Attorney’s Office in Tallahassee interviewed him in July. He wrote that his involvement in the settlement was limited to a handful of emails and signing the final agreement with the attorney general’s approval.
“In October, the state attorney contacted and told me that I was a witness in the matter, not a target, and that I had fully cooperated and provided truthful and complete information,” Guard wrote. “I expect that investigation to be completed shortly.”
Guard said he plans to withdraw his name from consideration for the federal judgeship if DeSantis picks him to fill either of the state court vacancies.
“Whichever occurs first is where I’m going to end up,” he said.
Judicial nominating commissions, which are officially nonpartisan, were once designed to dilute the influence of politics in judicial selections. These days, though, most members of the nine-person panels are appointed by the governor.
In Monday’s interviews, the candidates frequently uttered the words “originalism” and “textualism” as they described their judicial philosophies. The former is a concept that judges should apply constitutional principles the way that the nation’s founders originally understood them. Textualism is a related notion that generally means applying the plain meaning of the text of laws and the Constitution.
Both concepts, which are widely associated with conservative legal thought, were popularized by the late U.S. Supreme Court Justice Antonin Scalia.
Roger Gannam, a judge on the 6th District Court of Appeal, referenced a quip Scalia once made to refer to himself as a “faint-hearted originalist” while his colleague Clarence Thomas was a “bloodthirsty originalist.”
“I would put myself in Justice Thomas’ camp in terms of always wanting to get it right,” Gannam said.
annam said.
Before DeSantis made him a judge in 2023, Gannam worked several years as a lawyer for the Liberty Counsel, a Christian legal organization that frequently champions cases involving issues like abortion, same-sex marriage and religious freedom.
One case Gannam cited in his application involved Kim Davis, the Kentucky County court clerk who refused to perform same-sex marriages. He also represented military officers in a set of cases involving religious objections to COVID-19 vaccine mandates.
Gannam said the Liberty Counsel gave him some of his most gratifying work. He was asked about how his background informs his judicial decision-making.
“I try to live by certain principles,” he said. “Some come from scripture some other places.”
Other candidates interviewed Monday included Samuel Salario, a former judge of the 2nd District Court of Appeal, now in private appellate practice, and Hillsborough Circuit Judge Thomas Palermo.
The legal concept known as stare decisis also came up repeatedly in Monday’s interviews. It’s the notion that judges should abide by the rulings of prior courts, even if they disagree with those decisions.
Although it is considered a foundational principle in American law, several of the applicants voiced openness to the idea that courts should overturn precedents.
“Stare decisis is a judicial policy. It is not in the law,” said Adam Tanenbaum, a judge of the Tallahassee-based 1st District Court of Appeal, who was among the applicants.
In explaining his approach to deciding whether to overturn a precedent, Tanenbaum referenced U.S. Supreme Court Justice Samuel Alito’s majority opinion in the Dobbs case, which struck down the 50-year precedent that guaranteed the right to abortion. He said judges are “finders of the law” not “declarers of the law.”
Our business is to find what that law is over time,” Tanenbaum said. “If someone else comes along, say me and I see the law ... is dramatically different to what the court has said the law is in the past, the law itself has to prevail.”
Gannam, Guard, Salario and Tanenbaum were among the commission’s list of finalists released Tuesday, along with state appellate Judges Robert Long and Joshua Mize.
DeSantis has 60 days in which to make the appointment.
