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The Arcane Question That Will Decide the Fate of Florida's Supreme Court

Three of them must retire on the same day Gov. Rick Scott’s term ends. But no one knows who’s replacing them yet -- Scott or his successor?

governor rick scott
Florida Gov. Rick Scott
Justices on the Florida Supreme Court know long in advance the date on which they must retire, but few of them have worried a great deal about the exact hour. Now a big power play in state politics may turn on that arcane question.

Once they are appointed, justices in Florida can stay on the bench for repeated six-year terms. If they reach the mandatory retirement age of 70 during the first half of a term, they have to step down on or before their birthday. If they turn 70 during the second half, they can serve out the remainder of their full term.

As it happens, three justices are scheduled to leave office on the same day: Jan. 8, 2019. Gov. Rick Scott will reach the end of his two-term limit as governor that same day. Scott maintains that the justices’ terms will end at the stroke of midnight, whereas he will still be governor until his successor is sworn in, most likely at noon. Therefore, Scott maintains, he’ll be able to pick three new justices as one of his final acts. “I will appoint three more justices on the morning I finish my term,” Scott said when he made his first appointment to the court last year.

Scott’s position is now being challenged. The Florida Supreme Court itself will hear arguments about the matter on Nov. 1, in a case brought by the Florida League of Women Voters and Common Cause. “Certainly, litigation is not our first choice, but let’s not wait until January 2019 to have this constitutional crisis,” says Pamela Goodman, president of the league.

The same circumstances were in play back in 1999, when Republican Jeb Bush succeeded Democrat Lawton Chiles as governor. In that case, the incoming and outgoing governors were able to work together and agree on a joint appointment, picking Peggy Quince -- the court’s first black woman justice, and one of the trio set to step down in 2019.

That type of bipartisan cooperation is not expected this time around. Republicans have controlled the Florida Legislature and governorship for the past 20 years, but progressives have been able to maintain a majority on the top court. “They’re technically nonpartisan justices, but the fact remains that there has been a 5-2, and more recently a 4-3, bloc of progressive and liberal justices that have frequently been the only check or balance to the Republican legislature or the Republican executive,” says Aubrey Jewett, a political scientist at the University of Central Florida.

It’s no surprise that Scott would like to put a conservative stamp on the court on his way out the door. Not only has the court struck down some conservative laws, but it’s also wreaked havoc with Republican plans for ballot measures. Florida is unique in requiring that its state Supreme Court sign off on constitutional amendments proposed for the ballot.

Regardless of how the court rules, Scott may take the appointment power out of his own hands, thanks to his political ambition. Scott is widely expected to run for the U.S. Senate next year. If he wins, he could be sworn into his new office on Jan. 3, 2019, a full five days before any justices have to step down.

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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