Progressive groups now are suing to stop a state nominating panel from recommending candidates to the Florida Supreme Court, saying it “lacks the authority to make its nominations before the vacancies occur.”
That’s after the court itself, in an unsigned order earlier this month, said outgoing Republican Gov. Rick Scott cannot appoint the replacements for Justices Barbara Pariente, R. Fred Lewis, and Peggy A. Quince. Scott, who favors conservative jurists, said he would name their replacements; the groups challenged him and won.
Here’s what’s at stake: The next justices will likely determine the ideological balance of the 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 sometimes a swing vote.
The organizations argued Scott shouldn’t be able to replace the outgoing justices because their terms don’t expire till the last minute of his last day in office, but the new governor will be sworn in earlier.
And the court’s order came with similar provisos, that “the justices do not leave prior to the expiration of their terms at midnight between January 7 and January 8, 2019, and provided that the (new) governor takes office immediately upon the beginning of his term.”
As it stands now, the next governor — almost certainly either Republican Ron DeSantis or Democrat Andrew Gillum — will have to pick from the JNC’s list of nominees.
The “proceedings underway create, at the very least, sufficient appearance of a tainted process that (Scott and the JNC) should be prohibited from any further actions other than alerting the public that applications will continue to be received at least through January 8,” according to Friday’s filing by attorney John S. Mills of Tallahassee.
It asks the court “to order the Commission to accept new applications … no earlier than January 8, 2019, prohibit the Commission from taking any other action on these vacancies until January 8, 2019, and prohibit Gov. Scott from taking any further action related to the Commission or its membership other than preserving all records related to the proceedings of the Commission generated at any time during his administration.”
The JNC “begins interviewing applicants November 3, and it is clearly poised to make its nominations by November 9,” the filing said. “The dispute will not become moot once interviews begin or even if nominations are made, but it would be far better to decide these issues before the Commission announced nominees.”
Of the 59 applicants, it added, “only 11 women applied, only 6 applicants identify as black, and only 6 identify as Hispanic. The list of applicants has been described in the press as including a ‘who’s who of conservative judges.’ ”
Jason Unger, who chairs the Supreme Court JNC, could not be reached Friday night.
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.”