Florida Gov. Ron DeSantis, a Republican, has been violating the state constitution since March 23. On that date, he refused to appoint two justices to fill vacancies on the Supreme Court of Florida by the constitutionally mandated deadline. Now the governor appears to be mulling another unconstitutional move: He may appoint a nominee who cannot legally take office.
After Justice Peggy Quince’s retirement from the court in January 2019, the court was left without an African American justice for the first time in 36 years. The Florida appellate bench is in desperate need of diversity. During eight years in office, former Gov. Rick Scott appointed 36 judges to our appellate courts—more than half the bench—and one to the Supreme Court. Scott appointed only one African American—in mid-December 2018, fewer than thirty days before he left office.
DeSantis is different. He seems to have a genuine desire to increase diversity on the bench. He has appointed several African American trial judges since taking office. Now that his first two state Supreme Court appointees resigned to take seats on a federal appellate court, DeSantis has the opportunity to appoint an African American justice. And he is under pressure to do so by Democratic state lawmakers and editorial boards.
Thirty-two people applied for the two vacancies. Six of the applicants were African American. Of those six, the court’s judicial nominating commission, which vets applicants and sends the governor nominees, nominated one, Palm Beach County Circuit Judge Renatha Francis. (The JNC failed to nominate any African American applicant in the last round of appointments for three vacancies.) The problem is that the JNC has nominated someone who is constitutionally ineligible to sit on the Florida Supreme Court at the time the vacancies must be filled.
Under Article V, Section 8, of the Florida Constitution, “No person is eligible for the office of justice of the supreme court … unless the person is, and has been for the preceding ten years, a member of the bar of Florida.” Francis was admitted to the Florida Bar on September 24, 2010. She will not meet that requirement until September 24, 2020. DeSantis was obligated to appoint justices by March 23, but he declined to and said he would probably make the appointments on May 1. Even then, Francis would not be eligible.
Her ineligibility has been briefly noted by news articles, an editorial board, and Democratic state Rep. Geraldine Thompson, who criticized the nomination in an op-ed. Nova Southeastern University Professor Robert Jarvis, the Florida Legislative Black Caucus, former president of the Florida Bar Eugene K. Pettis, and even Francis herself acknowledge the issue but paper over it. They argue there is a difference between appointment and commission. A commission, as defined by Black’s Law Dictionary, is “[a] warrant or authority, from the government or a court, that empowers the person named to execute official acts.” It is a formal document signed by the governor. According to those who support Francis’s appointment, she need not be eligible at the time of appointment so long as she is eligible at some time in the future. At that point, the governor can issue her the commission and she can take office.
But the text of the Florida Constitution does not support that view. There are two other constitutional provisions that are relevant. First, Article V, Subsection 11(c) states that “[t]he governor shall make the appointment within sixty days after the nominations have been certified to the governor.” (Emphasis added.) Next, Article V, Subsection 11(a), provides that, “[w]henever a vacancy occurs in a judicial office to which election for retention applies, the governor shall fill the vacancy by appointing for a term.” (Emphasis added.)
DeSantis appears to reject constitutional limitations on his authority.
The plain language of the Florida Constitution does not distinguish between appointment and commission. The constitutionally significant event is the appointment, which is what fills the vacancy. How can a vacancy be filled if the appointee does not take office for a few months? It can’t.
Florida Supreme Court precedent confirms that, when an appointment to office depends solely on the governor’s authority—which is the case with appellate judgeships in Florida—the appointment is not complete until the governor issues a commission. In 1971’s State ex rel. Lawson v. Page, the court considered rival claims to a seat on the South Broward Transit Authority District. Gov. Claude Kirk had sent a letter to the secretary of state declaring his intent to appoint William R. Page. But Kirk failed to sign Page’s commission before he left office. The new governor, Reubin Askew, canceled the appointment and commissioned William Lawson to the seat instead. The Florida Supreme Court determined that Lawson was the lawful holder of the office. “By failing to execute a commission in favor of [Page],” the court said, “Governor Kirk failed to appoint him[.]” It concluded that, because “the act of appointment” was not completed by the execution of a commission,” Page was never actually appointed.
In 1966’s In re Advisory Opinion to the Governor, the court held a governor can’t issue a commission to a person who is ineligible for judicial office. There, voters elected a judge who would not be legally eligible to take office at the start of his term, or during a grace period created by statute. The Supreme Court told the governor “that you are not authorized to sign his commission” at all because the judge-elect would “not now nor will he within the time allowed by law possess the qualifications now required by the Constitution of this State to hold the office of a Judge of a Circuit Court.”
DeSantis is not authorized to issue Francis a commission—to make the appointment—until she is eligible on September 24. The governor can’t simply announce his intent to appoint her and satisfy the constitutional appointment requirement. Nor can he leave the vacancy open until September 24. Yet DeSantis appears to reject these constitutional limitations on his authority. His top aide said in March that “the governor is open to waiting until September to name” Francis to the court.
The Florida Supreme Court needs to be diverse. It needs different perspectives; it should be representative of our state. But the words of the state constitution are paramount, and those words are unequivocal. The Florida Constitution forbids DeSantis from appointing Francis to the court by issuing her a commission while she is ineligible, and he cannot lawfully hold the seat open until she becomes eligible. If the governor ignores these rules, he will demonstrate that he feels unbound by “the fundamental law of the state.”
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Voter suppression: A short history of the long conservative assault on Black voting power
Then Kavanagh went even further, suggesting that not all eligible voters are of the same quality.
“Not everybody wants to vote, and if somebody is uninterested in voting, that probably means that they’re totally uninformed on the issues,” he added. “Quantity is important, but we have to look at the quality of votes, as well.”
“To paraphrase George Orwell,” Columbia University history professor Eric Foner told CNN, “there are those who feel that some voters are more equal than others. And that’s an attitude being implemented right now in some legislatures.”
To the surprise of no one, much of this maneuvering disproportionately targets voters of color — in particular Black voters, who played a critical role in helping Democrats secure both the White House and the US Senate.
The current assault on participatory democracy is disturbing not because it’s new — but rather because the country has been here so many times before. US history is rife with examples, many of them violent, of attempts to quash Black voting power, stretching back to at least the mid-19th century.
The reason: to terrorize Black voters (and anyone who supported Reconstruction efforts) in the run-up to the November presidential contest between Ulysses S. Grant — whose incarnation of the Republican Party backed legislation supporting Black Americans — and Democrat Horatio Seymour, pitched as the “White man’s candidate.”
(It’s worth remembering that today’s Republicans are the contemporary successors to the 19th-century Democrats. In fits and starts over much of the 20th century, the two parties realigned, propelled largely by the matter of civil rights reforms.)
As in 1868, power was at the heart of the issue. Most of the attackers were ex-Confederate soldiers, and many of them also belonged to the Ku Klux Klan. Through arson and murder, the group fought to bolster White supremacist policies and keep formerly enslaved people away from the polls — out of the polity.
Governments in the South, in complete violation of the 15th Amendment, began to take away Black men’s right to vote — not explicitly but obliquely, via an elaborate mix of, among other things, registration requirements, poll taxes, literacy tests and understanding clauses (where a would-be voter had to prove to a registrar that he understood the state’s constitution; amazingly, Black men never seemed to understand it).
The Reconstruction governments were gone. This was a new era of racial subjugation, captured in the term “Jim Crow.”
In other words, while the approach evolved — became just slightly less egregious — the aim never wavered.
Crucially, political violence remained rampant. It underpinned the Jim Crow racial regime.
“The 1898 coup capped a months-long White Supremacy Campaign in North Carolina designed to strip Black men of the vote and remove them from public office forever,” he explained.
Former Republican strategist Lee Atwater summarized the racial dimension of the strategy the following way.
‘This is Jim Crow in new clothes’
Not everyone on the Court agreed. Underscoring the wrongheadedness of the decision, the late Justice Ruth Bader Ginsburg wrote in her powerful dissent that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
“One of the lessons, unfortunately, was what can happen to your rights in the hands of a conservative Supreme Court,” Foner told CNN.
The avowed reason for proposing such legislation is election security. But that explanation is little more than a canard, in light of the fact that Americans weren’t really worried about election security until Republicans started talking about it, and Republicans didn’t start talking about it until they started losing recent elections.
“There’s a growing trend on the right in which any election they lose is dismissed as illegitimate,” Princeton University history professor Kevin M. Kruse said. “The proponents of voter suppression have created a fiction in which they are the victims of mass voter fraud. They are never able to provide any proof of that, but they believe it all the same.”
Warnock’s focus on the past makes good sense.
The task today is to use the past — to understand its racial hierarchies and how they persist — in order to create a tomorrow in which everyone is equal.
CNN’s Nicquel Terry Ellis contributed to this report.
‘Street Gang’ Pulls The Curtain Back On 50 Years Of ‘Sesame Street’ : NPR
Hulton Archive/Getty Images
For generations, Sesame Street has been a mainstay of American children’s television. But when the show premiered more than 50 years ago on Nov. 10, 1969, it was considered controversial, even radical.
“In 1969, what was on TV for kids was a very dire landscape,” says Marilyn Agrelo, the director of a new documentary called Street Gang: How We Got to Sesame Street.
Courtesy of Street Gang: How We Got To Sesame Street
“Basically, the programming was geared to sell children toys, Tootsie Rolls and breakfast cereals, and there was no thought of educating them in any way,” she says.
Sesame Street debuted on the airwaves in a tumultuous moment in U.S. history, and the bigger forces upending American life played a big part in shaping how and what the show came to be.
“The people that started the show were intent on harnessing all of the energy that was around the protests of the Vietnam War, the civil rights movement,” Agrelo says. “They wanted to explain the world to children, but their bigger goal was to reach inner city children of color who were not getting the same educational opportunities as white children in the suburbs were getting.”
Based on the book Street Gang: The Complete History of Sesame Street by Michael Davis, the film weaves archival footage and interviews with the show’s longtime cast and crew. Street Gang follows the show’s creators — Joan Ganz Cooney, Jon Stone and Jim Henson — as they craft a new way to bring educational programming into the homes of kids in all parts of the country.
Agrelo and actor Sonia Manzano, who played Sesame Street resident Maria for 44 years, spoke with NPR’s All Things Considered about why the show was so groundbreaking, why audiences connected with Muppets like Big Bird and Oscar the Grouch and its staying power, five decades on. Listen in the audio player above, and read on for a transcript of the interview.
This interview has been edited for length and clarity.
Mary Louise Kelly: Going back and watching the early episodes of the show, it is so striking. The whole idea was: This is going to look like a realistic city street. Oscar the Grouch is going to totally, plausibly live in a trash can because there’s like trash blowing down the street.
Sonia Manzano: I remember being stunned when I saw the show for the first time. I was a college student at Carnegie Mellon University and there was James Earl Jones reciting the alphabet. And then they cut to Susan, the African American actress Loretta Long, on this urban street. And I was stunned because I am a Puerto Rican, from the Bronx, and I was raised in the ’50s, loved television, [but] never saw anybody who looked like me. And I began to feel on some level that I was invisible. I didn’t know what I would contribute to a society that was determined not to see me. So when I saw that show, I was absolutely thrilled.
Afro Newspaper/Gado/Getty Images
And how did that inform how you played Maria?
Manzano: I became Maria and never lost sight of myself as a little kid watching television. I watched television to find comfort and order in, what seemed to me, a tumultuous world. So when I became Maria, I never forgot that. And I always assumed that some kid was out there watching me, looking for the same comfort that I looked to find on Leave It to Beaver. Except this is going to be better because I was one of them.
You have this show that set out to intentionally feature a diverse cast of kids and adults. Marilyn, talk about how that went down. There was some pushback.
Marilyn Agrelo: So in 1969, Sesame Street unveils and there is a African American couple who live in the same neighborhood with their white neighbors — yes, with Big Bird and several other Muppets — but it’s a very integrated cast. The first time this [was] ever seen on television in Jackson, Miss., the public television station received a lot of complaints and they stopped airing the show. Miraculously, a commercial station in Jackson said “if the public station won’t air it, then we will.” This is just an example of how groundbreaking this was.
Muppets, the the nonhuman characters on the show, connected so much with people. I know as a kid, I was not remotely aware of a lot of the nobler advancement of social justice and racial equity that you all were grappling with, I just thought, “This is really funny.” The Count and Oscar the Grouch had me rolling on the floor.
Agrelo: There were other shows with puppets on television, but there was something about the writing on Sesame Street. You know, some of those Muppet skits had really sophisticated social satire, and this was all geared to bring the adults in. A perfect example of that is Alistair Cookie, the host of “Monsterpiece Theater.”
Manzano: Certainly another example of how the show worked on two levels was “It’s Not Easy Being Green,” Kermit the Frog singing that wonderful song with Lena Horne, the great jazz singer-activist. And I walked into the studio that day and I said, “Gee, are they singing about what I think they’re singing about? Are they singing about race?”
Robert Fuhring/Courtesy Sesame Workshop
Well, to me, they were. And that’s an example where it works on so many levels. If that’s what’s in your head, in your mind, in your experience, you would imbue that piece with that sensibility. And certainly kids did, or they just thought it was about what a drag it was to be a green Muppet. It worked on that level as well.
So a show that started out radical, political: Is it still, do you think? Where have we landed five decades later?
Agrelo: I think Sesame Street is addressing the world as it is in the same way that they did then. I know that they have started writing moments where they’re explaining what a protest is. Certainly every child in America has seen the Black Lives Matter protests in the streets and sort of the upheaval that’s happening in our society again, like it did in 1969. So Sesame Street continues to try to interpret the world with authenticity to really help explain to them what is happening around them.
Street Gang: How We Got To Sesame Street is in theaters and streaming now.
Sam Gringlas produced and Sarah Handel edited this story for broadcast.
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