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Martin Dyckman: Amendment 3 is a cynical bamboozlement and must be defeated

Down deep on Tuesday’s ballots — the last item on most — is an issue not to be overlooked.

Should a lame-duck governor replace Supreme Court Justices and judges of the district court of appeal who will be leaving office when he does? Or should it be the next governor’s duty?

That’s the issue with Amendment 3.

It is one of the most cynical bamboozlements that the Florida Legislature has ever tried to slip past the voters.

Amendment 3 needs to be defeated. It needs a “no” vote from every citizen who cares about the integrity of Florida’s highest courts.

The “no” vote needs to be huge, the better to tell the politicians: “Keep your grubby hands off our courts!”

Amendment 3, which the Republican leaders rammed through the Legislature on party-line votes, has just one plain intent:

It’s to let Rick Scott pack the Supreme Court with ideological soul mates — people who care no more than he does, which is not at all, for saying “no” to a governor or Legislature — and to keep the courthouse door open to everyone seeking justice.

In an unusual coincidence, Supreme Court justices Barbara Pariente, Peggy Quince and C. Fred Lewis will have to step down on Jan. 5, 2019. Each will turn 70, the retirement age mandated by the Constitution, too soon to qualify for another six-year term.

Justice James E. C. Perry will be leaving even earlier, in January 2017, for the same reason. So the governor elected Tuesday will certainly choose his successor.

Although the court decides most cases unanimously, there is a notable 5-2 split on certain contentious issues, especially those related to politics. For instance, Justices Charles Canady and Ricky Polston dissented to the court’s recent agreement to review the circuit court order that required revision of only two congressional districts. They dissented earlier to reprimanding a circuit judge for personally raising campaign funds rather than delegating the job to a committee. The U.S. Supreme Court is reviewing that case.

Scott almost surely would appoint justices in the mold of Polston and Canady. Charlie Crist — who appointed them to the court when he was governor — would more likely appoint justices like Perry or Jorge Labarga, whom he put on the court to balance Polston and Canady.

Should Scott win Tuesday, the balance would shift to 4-3 in 2017, and if Amendment 3 is ratified, Labarga would become a lonely dissenter in an overwhelmingly right-wing court two years later. Labarga deserves better than that. So does Florida.

Crist wasn’t above putting friends into judicial robes when he was governor, but ideology didn’t matter as much to him, and he never rejected the Florida Bar’s recommendations for nominating-commission members. Scott has done that 19 times.

It’s worth noting who promoted Amendment 3. The prime sponsor was Sen. Tom Lee; Scott made his wife a Hillsborough County circuit judge. Is a district court or Supreme Court seat in the long-range plan? John Thrasher, who was Scott’s campaign chairman before being tapped for the Florida State University presidency, was the Senate rules chairman who saw to its passage.

The scheme founders if Crist defeats Scott. But Amendment 3 is a bad idea regardless. Voters can’t hold a former governor accountable for his appointments to high office. In every other instance, an incoming governor can replace his predecessor’s leftovers. In any case, Crist opposes Amendment 3.

The case for Amendment 3 is total fiction. Sponsors pretend it would hinder the appellate courts to leave seats vacant during the two months or so that it would take to nominate and appoint successors.

But in fact, newly retired judges continue to sign off, as senior judges or justices, on cases that were already argued. They or other judges can also be called in for new cases until successors are seated. It happens all the time.

It’s worth remembering the last time a lame-duck governor picked a Supreme Court justice all on his own. Claude R. Kirk Jr. gave Florida David L. McCain despite the Florida Bar’s urgent warnings that McCain was unethical, alcoholic, and perhaps a criminal too. All of that proved true. McCain resigned in the face of impeachment, was disbarred, and ended his days as a fugitive from federal drug smuggling charges.

On the only other end-of-term occasion, Governor-elect Jeb Bush objected to Lawton Chiles filling a Supreme Court seat and might well have won had he sued. They compromised by jointly appointing Quince.

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.


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