Gov. Rick Scott has headed down a dangerous path by announcing he has started the process to fill three upcoming vacancies on the Florida Supreme Court as he heads out the door. But to his credit, the governor indicated his "expectation’’ is that he and the incoming governor will agree on the appointments and that he won’t appoint anyone until his successor has interviewed them. That sort of cooperation could head off a constitutional crisis, as long as Scott makes good on his "expectation’’ regardless of who wins the governor’s race.
An outgoing governor should not be able to pack the Supreme Court days from leaving office. The terms of the three justices who are leaving the court because of the mandatory retirement age of 70 — R. Fred Lewis, Barbara Pariente and Peggy Quince — expire Jan. 7. That is the day before a new governor will be sworn into office. It defies logic and any democratic values that justices could serve until 11:59 p.m. Jan. 7 and the outgoing governor could appoint their successors minutes or hours before the next governor is sworn into office.
And if Scott defeated incumbent U.S. Sen. Bill Nelson, he would be sworn into the Senate on Jan. 3. That means Lt. Gov. Carlos Lopez-Cantera could serve as governor for a few days and potentially make the court appointments, presumably doing Scott’s bidding. And that would be a farce that could undermine the public credibility of the court for decades.
The political reality is that Scott is making an effort in the midst of his tight race with Nelson to sound reasonable rather than dictatorial. He’s also counting on Republican Ron DeSantis defeating Democrat Andrew Gillum in the governor’s race, which also is no sure bet. If Gillum wins, will Scott pull back the olive branch? And what are the odds that Gillum, the most liberal Democratic nominee in decades, and Scott would ever agree on three new justices?
The three outgoing justices lean toward the liberal side and were appointed to the Supreme Court by the late Democratic Gov. Lawton Chiles. Replacing them all with conservatives would shift the balance of the court, as its two most conservative justices — Charles Canady and Ricky Polston — often find themselves on the losing side of key cases. For example, the three retiring justices were part of the 4-3 majority that wisely kicked Amendment 8 off of the November ballot because its title and summary neglected to mention that the amendment would transfer authority over charter schools from local school districts to the state. That is a pet issue for conservatives and for the politically tainted Constitution Revision Commission, which put the amendment on the ballot and packed it with two other unrelated provisions to deceive voters about its intent. Yet the amendment’s supporters had the audacity to instantly complain about activist judges.
There is precedent for bipartisan cooperation between outgoing and incoming governors to avoid a constitutional crisis over Supreme Court appointments. Former Govs. Bob Graham, a Democrat, and Bob Martinez, a Republican, both avoided potential confrontations by allowing their successors to fill court vacancies. Facing this situation in 1998, Chiles and incoming Republican Gov. Jeb Bush agreed to interview candidates before Chiles appointed Quince to the Supreme Court with Bush’s endorsement. But 20 years have passed, partisan lines have hardened and this time the balance of the court could change.
Scott has sent an encouraging message about cooperation and agreement on appointments to the court. Whether he can ultimately be the statesman rather than the partisan if Gillum wins the governor’s race is another question. The Supreme Court has dodged this issue once, rejecting a request by the League of Women Voters of Florida and Common Cause to rule that the incoming governor would appoint the three new justices by finding the issue "is not ripe.’’ It will ripen soon, and the court will not be able to dodge it again if Gillum is elected governor and Scott forgets about his "expectation.’’