Governor Rick Scott’s decision to start the process of appointing new Florida Supreme Court justices has ignited a looming constitutional crisis. At the center of the issue: who—the outgoing or incoming governor—has the ability to make those appointments.
Here’s the dilemma. State Supreme Court Justices Peggy Quince, Fred Lewis and Barbara Pariente have reached the mandatory retirement age of 70. And their terms on the court expire the same day Florida will swear in a new governor. Florida’s constitution doesn’t say who—the outgoing or incoming governor, gets to name new justices. It’s only happened once before. And one justice, Peggy Quince, happens to be in the situation twice.
“Buddy McKay may have been in office by the time this happened, but it was the end of the Chiles Administration," says state constitution expert Sandy D'Alemberte. He's a former American Bar Association President, Florida state representative and Florida State Univresity President Emeritus.
"I think people of good will sat down and figured it out.”
The deal between a Democrat and a Republican, paved the way for Quince to become the first black woman on the Florida Supreme Court. Now she, along with Pariente, Lewis and the rest of the court, may have to decide the matter of who gets to choose their successor:
"And as you go down the track you started, we now get to Inauguration Day. The day the judges terms end. So that’s when the vacancy occurs," D'Alemberte explains. "You don’t have a nominating commission until you have a vacancy.”
But instead of waiting for a vacancy, Scott started the nomination process rolling.
This conundrum has been a long time coming. There was an attempt to address the issue in 2014 through constitutional amendment. It would have given the power to the sitting governor, but critics blasted it as a power grab, and voters rejected it.
Last year, the League of Women Voters of Florida along with the government watchdog group Common Cause, brought the issue to the Florida Supreme Court. But the justices refused to rule—saying the issue wasn’t “ripe for consideration” at the time. D’Alemberte says attorney’s for the governor’s office, during arguments for the case, made a few admissions that he says point to who gets the appointments:
“He seemed to concede 1) the issue needs to be settled and 2) I think he conceded, declaratory judgment would be an appropriate way to settle the issue. So we have the governor’s counsel saying it’s not clear."
The issue could come down to timing.
Governor Rick Scott believes the justices’ terms end at midnight on January 8th. A new governor isn’t usually sworn in until later in the day, around noon, giving Scott the ability to make the appointments in his remaining 12 hours on the job. D’Alemberte says there is case law that argues when time expires, it’s over at the end of that day, when a new governor is sitting in that office.
Scott says he wants the winner of the gubernatorial election to interview finalists in the hopes of reaching a deal—just like Lawton Chiles and Jeb Bush did. But D'Alemberte calls that "superficial graciousness."
"He’s offering to share something that’s not his. Which is rather a strange position to take, but that’s where he is right now, as I understand it.”
Sharing could be simple if Ron DeSantis, a fellow Republican, is the winner. But if it’s Democrat Andrew Gillum? A deal could be harder to reach. Scott recently called on the state’s Judicial Nominating Commission to open up the application process. and it has 60 days to come up with a list of candidates for each of the Florida Supreme Court’s looming vacancies. if the court didn’t consider the matter “ripe” before. It may well be now. The President of the League of Women Voters of Florida says her group is considering re-filing its lawsuit.