Raising Stakes of Florida Governor's Race, Power to Replace 3 Supreme Court Justices Will Go to Winner

by | October 16, 2018

By David Smiley

In a decision that further raises the stakes of Florida's gubernatorial election, the state Supreme Court has ordered that the job of replacing three of its justices belongs not to lame-duck Gov. Rick Scott but to his successor, whomever that might be.

The high court issued a rebuke of Scott on Monday, saying the governor "exceeded his authority" when he moved last month to begin the process of naming new Supreme Court justices. Eager to replace a majority of a liberal voting bloc on the court, Scott directed a state nominating commission to submit names for him to fill upcoming vacancies before he's forced out of office in January by term limits. But he was sued by the League of Women Voters of Florida on the grounds that he couldn't legally fill vacancies that hadn't yet occurred.

Scott wanted the names by Nov. 10, four days after voters choose his replacement. Instead, the high court said the ability to appoint new justices falls to the next elected governor.

That means either Republican Ron DeSantis or Democrat Andrew Gillum will control the tilt of the seven-member court, potentially swaying a generation of precedent-setting legal opinions on issues like labor, school vouchers, gun rights and healthcare. The decision could spark even further interest from organizations like Emily's List and the Federalist Society to a race that has already drawn tens of millions in outside spending.

"November's election already held huge consequences for women and families across Florida," said Lindsay Crete, a spokeswoman for Emily's List, which backs pro-choice candidates. "Now, the stakes couldn't be higher."

Gillum and DeSantis have both held that the next governor retained the right to appoint replacements for Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince, who are up against age limits and must resign the day that Scott is set to leave office. Gillum issued a statement, saying "one of my top priorities will be to restore integrity to the judicial nominating process." The DeSantis campaign, meanwhile, used the opportunity to blast Gillum.

"If Andrew Gillum is elected, out-of-state, radical groups would pressure him to appoint activist judges who would legislate from the bench to fit their own ideology," spokesman Stephen Lawson said. "The consequences of this would be felt for generations, and it would be dangerous for every person in our state."

The three outgoing justices have held the court to the left, resulting at times in rulings against Scott. Each was originally appointed in the late 1990s by Democratic Gov. Lawton Chiles, although Quince's appointment was a joint decision between Chiles and then-incoming Gov. Jeb Bush. It's unclear how the judges ruled on the order, which doesn't break down where the justices fell on the arguments.

Scott, who'd said he hoped to reach a joint decision on new justices with his replacement, has not yet commented on the ruling. John Mills, an attorney for the League of Women Voters stressed that the organization had always contended the next governor alone should make the decision.

"Governor Scott ... has no part to play in these appointments," Mills said. "So 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."

Following the saga that surrounded the nomination of Brett Kavanaugh to the U.S. Supreme Court, it's possible, if not likely, that voters will rally around the decision. The campaigns will certainly stump on it. Republicans, who have campaigned on the importance of appointing higher court judges for decades, have argued that this is their chance to shift the direction of the court.

Florida Supreme Court justices do have to eventually seek election on a ballot in order to be retained, but are rarely, if ever, voted out.

"With a 4-3 majority currently, the liberals have owned the Florida Supreme Court for decades. Now, THREE of the liberal Justices are facing mandatory retirement and either Ron DeSantis or Andrew Gillum will replace them," Republican Party of Florida Chairman Blaise Ingoglia said in a statement.

It's not entirely clear how the state will move forward now. The court ordered that oral arguments be heard Nov. 8 on the issue of when the nominating commission should certify its picks. But Mills, the attorney for the League of Women Voters, urged the state to start its nominating process from scratch, saying interested and qualified candidates likely haven't expressed interest due to the belief that they'd have no shot to be appointed by Scott.

"We are very hopeful the [nominating commission] will do the only fair thing here," Mills said, "which is to halt the process until the Supreme Court issues its final order and then reopen the application deadline."

(c)2018 Miami Herald