Gov. Rick Scott may have acted beyond his constitutional authority last week when he jump-started the Judicial Nominating Commission’s process of vetting potential justices to fill three soon-to-be vacancies on the state Supreme Court, new legal action contends.
In a writ of quo warranto filed with the Supreme Court on Thursday, Common Cause and the League of Women Voters of Florida challenge Scott’s power to coordinate with the JNC and to require the nine-member panel submit three to six candidates for the high court by Nov. 10.
The Supreme Court later on Thursday asked Scott to respond to the petition no later than Sept. 26.
The groups had earlier challenged Scott’s authority to nominate three new justices before his term ends in January. At stake in the new year is the potential to swing the court’s political leanings. The three justices with expiring terms are Fred Lewis, Peggy Quince and Barbara Pariente — considered the liberal wing of the high court.
The Nov. 10 deadline, the petition argues, is outside of a constitutional provision that “nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days.”
The lawyers representing Common Cause and the League interpret the 30-day clause as meaning no potential replacements can be considered before a vacancy on the bench occurs.
The petition later reads, “Governor Scott’s attempt to require the [JNC] to convene and, more importantly, to set a deadline for nominations is unquestionably beyond his authority.”
The legal action comes after the Supreme Court in a 6-1 decision refused to rule on a lawsuit requesting the court block Scott from appointing three new justices on the day his term ends, Jan. 7. Then, the court agreed that Scott hadn’t made an official move regarding the nomination of new justices outside of comments to the press, and therefore it couldn’t weigh in.
When Scott corralled the JNC last week, the petition claims, he took “official action.”
But John Tupps, Scott’s communications director, pointed to precedent as justification for beginning the nomination process.
“The Governor is following precedent set by Governor [Lawton Chiles] and has said in good faith that his expectation is that he and the governor-elect will agree on the selection of three new justices,” Tupps said in a prepared statement. Chiles reached an agreement on a new high court pick with then-Gov.-elect Jeb Bush in 1998.
“It’s disappointing that these partisan groups filed a politically-motivated lawsuit that would create three prolonged vacancies on the Florida Supreme Court, contrary to all historical practice,” added Tupps.
Regardless of history, a lawyer handling the litigation told Florida Politics, Scott is still acting outside of his delegated powers.
“What politicians do in the past cannot possibly change the meaning of the Constitution,” Tallahassee-based attorney John Mills, who’s handling the litigation, said. “This is not an olive branch it’s a power grab.”
The petition requests the court consider the matter promptly, as the nomination process launched by Scott already is underway.