The state’s Supreme Court ruled Monday that outgoing Republican Gov. Rick Scott cannot appoint replacements for the court’s three upcoming vacancies.
“The governor who is elected in the November 2018 general election (most likely Democrat Andrew Gillum or Republican Ron DeSantis) has the sole authority to fill the vacancies that will be created by the mandatory retirement of Justices Barbara Pariente, R. Fred Lewis, and Peggy A. Quince,” the court’s one-page unsigned order said.
Two progressive groups, the League of Women Voters of Florida and Common Cause, had filed suit against Scott. They sought to block his nominations; he’s said he would have picked conservative jurists.
The next justices will likely determine the ideological balance of the state’s highest court: Pariente, Lewis, and Quince are regarded as the liberal-leaning contingent; Chief Justice Charles Canady and Justices Ricky Polston and Alan Lawson are the conservatives. Justice Jorge Labarga is often a swing vote.
The court’s ruling suggested they bought into the group’s argument that Scott shouldn’t be able to replace the outgoing justices because their terms don’t end till the last minute of Jan. 7, his last day in office, but the new governor will be sworn in earlier that morning.
Its order was contingent on the fact that the three justices “do not leave prior to the expiration of their terms at midnight between Jan. 7 and Jan. 8, 2019, and provided that the (next) governor takes office immediately upon the beginning of his term.”
“The people will have a very important say in this matter, especially because both candidates have staked out very different positions on the kinds of people they are looking to appoint to the court,” said John Mills, attorney for the plaintiffs, in a statement.
“Andrew Gillum has said he will ‘appoint diverse, qualified judges who represent the breadth and depth of people in this state,’ ” he added. “Ron DeSantis has said he will ‘appoint constitutional conservatives’ who will be very different from the retiring justices, who he characterizes as ‘liberal’ and accuses of ‘legislating from the bench for the past 20 years.’ Voters now have the opportunity to factor these positions into their choice for governor.”
Further, the court found that Scott “exceeded his authority by directing the Supreme Court Judicial Nominating Commission (‘the JNC’) to submit its nominations to fill these vacancies” by Nov. 10.
That panel was planning on interviewing all 59 applicants for the three vacancies on Nov. 3 and 4 in Miami, and Nov. 8 and 9 in Tampa. (One of those applicants, Jeff Burns, later on Monday sued to disqualify Pariente, Lewis and Quince from the case for an “objective economic conflict of interest.”)
The 60-day period “after nominations have been certified within which the governor is required to make appointments, as set forth in … the Florida Constitution begins to run only when the governor with the authority to appoint has taken office,” the court said. “As the JNC is an independent body, it is not bound by Gov. Scott’s deadlines.”
The court also set oral argument for Nov. 8 on “the issue of when the JNC can certify its nominations.”
In recent weeks, Scott tried to defuse the litigation by offering to confer with his successor on candidates, taking a page from the late Democratic Gov. Lawton Chiles, who reached a similar accord with incoming Republican Jeb Bush in 1998. Quince is the last justice appointed through such consultations.
Geoff Burgan, then the campaign communications director for Gillum, spurned the offer, saying: “In our understanding of the Constitution, the next Governor will appoint the next three Supreme Court justices.”
In a statement later Monday, Gillum said he was “pleased the … Court has brought closure to this important issue, finding — as we have consistently stated — that the next Governor of Florida will appoint the next three Supreme Court justices.
“It is a duty I take extremely seriously and, as Governor, one of my top priorities will be to restore integrity to the judicial nominating process,” he added.
DeSantis tweeted: “If (Gis elected, out-of-state, radical groups would pressure him to appoint activist judges who would legislate from the bench to fit their own ideology. The consequences would be dangerous and felt for generations.
“I promise to only appoint judges who will uphold the Constitution and follow the law as it is written. We must secure Florida’s future.”
Scott, a Naples Republican who is term-limited as Governor, now is running to unseat incumbent Democratic U.S. Sen. Bill Nelson, first elected in 2000.
The present suit had been first filed last year but the court said it couldn’t step into the controversy then because the Governor hadn’t taken any action yet.
In that decision, Labarga joined with the court’s conservatives. Pariente and Quince concurred, but Lewis dissented and called Scott’s proposed actions “blatantly unconstitutional.”
The court’s Monday decision also means the court could be short on justices for a while: The nominating and appointment process can take as long as four months, including background screening and reviews of The Florida Bar’s disciplinary records.
And the court itself tweaked its own rules last year regarding how and when retired justices can serve as “senior justices.”
A controversy erupted when then-Chief Justice Labarga allowed retired Justice James E.C. Perry to finish work on opinions, following decades of court practice. This was after Lawson, a Scott appointee, replaced Perry.
Republican House Speaker Richard Corcoran prepared a legal challenge to Perry’s continued work, saying among other things that Perry was an unconstitutional “eighth justice” on the seven-member court.