In an hour-long hearing characterized by sometimes-intense exchanges, the Florida Supreme Court heard arguments Thursday about reopening the application process for three upcoming vacancies on the court.
The League of Women Voters of Florida and Common Cause are asking the Court to order a nominating commission to extend an application deadline and halt the current nomination process in light of a court order issued last month.
The Supreme Court unanimously ruled Oct. 15 that the next governor has the “sole authority” to appoint replacements for justices Barbara Pariente, R. Fred Lewis and Peggy Quince. The justices are all leaving the court in early January because they have reached a mandatory retirement age.
After Tuesday’s election, Republican Ron DeSantis is in line to succeed Gov. Rick Scott in early January. But DeSantis’ narrow win over Democrat Andrew Gillum is expected to head to a recount before a final winner can be determined.
The selection of the three justices has drawn heavy attention, as it could lead to a major ideological change on the Supreme Court. Scott initially argued that he had the power to appoint the three justices, but the Supreme Court ruling last month rejected that possibility.
The Supreme Court Judicial Nominating Commission, a nine-member panel appointed by Scott, set an Oct. 8 application deadline for candidates for the court vacancies. The commission on Friday is scheduled to finish interviewing the 59 judges and lawyers who applied for the positions. The expectation is that the commission could shortly advance a list of potential court nominees — up to six names for each vacancy.
Chief Justice Charles Canady opened Thursday’s hearing by noting that the situation of having three justices retire on the same day at the end of a governor’s term is not likely to occur again because voters adopted a constitutional amendment on Tuesday that increases the mandatory retirement age for judges from 70 to 75.
Under the amendment, which takes effect July 1, justices and judges will have to leave the bench immediately when they reach age 75, rather than waiting for the end of their terms, which is the current process.
“That (three justices leaving at the same time) is not going to be happening in the future,” Canady said.
John Mills, a lawyer representing the League of Women Voters, acknowledged that such a situation would be unlikely. But he said it could occur, for instance, if multiple justices or appellate judges were rejected in merit-retention votes. Voters have never rejected a judge under the current retention system.
Raoul Cantero, a former justice who represents the nominating commission, defended that panel’s actions, noting it was following precedent in developing a list of court nominees in advance of the actual vacancies, which will occur on Jan. 8 when the new governor takes office.
“In fact, the practice uniformly for the last 20-plus years, has been that the JNCs start the process and even make the nominations before the justice or judge leaves office,” Cantero said.
The Supreme Court appointments are drawing extra scrutiny because they could shift the judicial direction of the state’s highest court for decades to come.
Pariente, Lewis and Quince are part of a liberal bloc, which now holds a slim 4-3 majority on the seven-member court and has thwarted Scott and the Republican-dominated Legislature on numerous occasions since the governor took office in 2011.
Another element of uncertainty has been added with the expected recount in the governor’s election. If Gillum somehow emerges as the winner through a recount, it will further complicate the court appointments.