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Rick Scott Won't Get to Stack Florida Supreme Court

Floridians defeated a proposed constitutional change that would have let governors name a new judge once the retirement date of the outgoing judge is known.

Wikimedia Commons/ Bruin79
Floridians have defeated a proposed constitutional change that would have given the next Florida governor the power to stack the state’s Supreme Court.

The ballot measure would have let governors name a new judge once the retirement date of the outgoing judge is known. It was proposed in anticipation of three judges who are expected to retire at the beginning of 2019, just as a new governor’s term starts.

The proposal drew an enormous swell of opposition from those who said it was a Republican attempt to make sure Gov. Rick Scott gets to reshape the state's top court. (Scott, who narrowly won re-election Tuesday, is term-limited and therefore Florida will have a brand new governor in 2019, the year at issue.) The measure failed to garner the necessary 60 percent of the vote, with only 48 percent casting a yes vote.

In other ballot measures impacting judicial terms, voters in Hawaii and Louisiana struck down measures addressing judges’ retirement age. Hawaii sought to increase the age to 80 from 70 years old and Louisiana wanted to eliminate its mandatory retirement age of 70 altogether. A total of 21 states have a mandatory retirement age of 70 for judges and 11 states plus the District of Columbia have retirement ages above age 70. Eighteen states do not have a mandatory retirement age. The subject of judicial retirement ages has been on a state ballots many times last few years.

Tennessee voters opted for a big change on how judges are appointed. Nearly two thirds voted to replace the state’s merit-based system with an appointment system that mirrors the federal system. Currently, the state’s Judicial Nominating Commission draws up a list of nominees and the governor selects a judge from that list. Now, the governor will be able to directly appoint a judge to an eight-year term, subject to approval by the legislature. The judge's reappointment to subsequent terms would be decided by retention elections.

The country is relatively evenly divided between the merit system and federal system for selecting state judges, with statewide judicial nominating commissions existing in 27 states and the District of Columbia. Proponents of the merit system argue it professionalizes the selection process. Supporters of Tennessee's measure say the federal method puts the judicial nominating process in the hands of people selected by the voters.

Elsewhere, voters in New Mexico approved a measure (Amendment 3) that sought to smooth out its complicated judicial selection process. Now, judges who want to file for a retention election will have more time to do so, a change that will presumably giving judges more time to decide on retirement. (Retention elections are held during general elections and are simply and up-or-down vote on whether the sitting judge should stay.) The current deadline in New Mexico requires that judges must announce their retirement more than nine months before they step down at the end of the year.

Liz Farmer is a former GOVERNING fiscal policy writer.
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