TALLAHASSEE — Florida's governor would have new powers to pack the state's Supreme Court under a proposed constitutional amendment that would allow him to make prospective appointments to the bench even if a vacancy occurs the day the governor is leaving office.
Under the proposal by Sen. Tom Lee, R-Brandon, the next governor could appoint the successors to three justices who would have to retire on the same day the governor's term ends, on Jan. 8, 2019. Justices are required to retire at age 70, but can continue to serve on the bench until the end of their six-year term.
Justices R. Fred Lewis, Barbara Pariente and Peggy Quince — the court's liberal wing — will all turn 70 during the next governor's term, and their six-year terms will all end on the same day as the new governor is inaugurated.
The state Constitution is unclear about whether the incoming or outgoing governor should make the appointment when the vacancy occurs on inauguration day. SJR 1188 is designed to put some certainty into the law by giving governors a "prospective appointment" as part of the state's merit selection system used for appellate courts.
If voters approve Lee's amendment in November, Gov. Rick Scott, if re-elected, or his successor will have the power to appoint a majority of the seven-member court, a legacy that could last for decades.
Here's how it would work: One of the last acts of the governor elected this November could be to name three new justices to replace the ones leaving the bench on inauguration day 2019. A fourth justice, James E.C. Perry, will retire in January 2017 and Scott — or his successor — will name his replacement. If the new justices are young enough, they could remain in office for decades, or until they reach the mandatory retirement age of 70.
"Despite how politically volatile this issue will be, the good governance answer is to let the outgoing governor make the appointments," said Lee, chairman of the Senate Judiciary Committee, which will hear the bill on Tuesday.
Since the proposed constitutional amendment gives a sitting governor the power to make prospective appointments whenever there is a pending court vacancy, the governor's reach could extend to the appellate courts as well.
Lee, who was courted by Scott in December to be his lieutenant governor, said the amendment is necessary now because "we're in a moment in history where we don't know who the next governors are going to be."
He said that if an outgoing governor makes an appointment that might be challenged by the incoming governor, Florida could face a "constitutional crisis."
But Lee's proposal has already caused commotion within the legal community and some are critical of giving a losing candidate, or retiring governor, such extraordinary powers.
"I don't believe that someone who loses an election should have this as a parting shot," said Alex Villalobos, a constitutional expert and former state senator from Miami.
Lee's proposal says that 30 days from the day the justice actually steps down the governor must "fill the prospective vacancy by appointing a justice or judge" from a list provided to him by the Judicial Nominating Commission. The sitting governor could start the nominating process long before the 30-day period starts.
"It's a good thing to clarify it — but not in the way it's being clarified," Villalobos said. He said a better option is to include an exception that disqualifies a governor who has lost an election or is termed out of office to have the appointment power.
Under certain circumstances, Scott could have appointment powers starting this year under the plan because Justices Charles Canady and Ricky Polston both face a merit-retention vote this November. If the amendment is approved and the governor were to lose his re-election bid and if Canady or Polston don't seek another term or are not retained for another term, Scott could select their successors. Both justices are expected to seek another term, however, and no justice has ever lost a merit-retention vote.
Florida avoided a constitutional conflict over the unsettled law in 1998, when outgoing Gov. Lawton Chiles, a Democrat, was preparing to name a replacement to retiring Justice Ben Overton. Incoming Gov. Jeb Bush, a Republican, argued the appointment was his, and he threatened to challenge it.
Rather than embark on a public fight, the two governors agreed to make a joint announcement and together named Justice Quince, the court's first black woman on the bench.
Since then, the only legal opinion on the matter was written in 2006 by former Justice Raoul Cantero, Lee said. The concurring opinion clarified that the outgoing governor can start the nomination process before the vacancy occurs.
Lee said he hopes to move his bill through the process quickly. If voters reject it, however, there may be another chance to revamp the state Constitution in 2017, when the Constitutional Revision Commission meets to propose amendments.
Mary Ellen Klas can be reached at firstname.lastname@example.org. Follow her on Twitter @MaryEllenKlas.