A governor who is leaving office after two terms or who has just lost a re-election campaign should not be able to pack the Florida Supreme Court on his way out the door. Yet that would be the effect of a proposed constitutional amendment that the Florida Senate will consider today. There is a legitimate issue regarding the appointment of state Supreme Court justices, but this is not the way to solve it.
Sen. Tom Lee, R-Brandon, has identified a situation that needs some clarity. Three of the Supreme Court's most liberal justices — R. Fred Lewis, Barbara Pariente and Peggy Quince — will each reach the mandatory retirement age of 70 during the next governor's term. They can serve out their complete six-year terms, which will end on the same day the new governor is inaugurated in January 2019. So which governor gets to appoint their successors? The outgoing governor who is leaving at the same time, or the new governor who is just taking office?
The state Constitution is unclear. The last time this occurred, outgoing Democratic Gov. Lawton Chiles and incoming Republican Gov. Jeb Bush avoided a court fight in 1998 and agreed to jointly appoint Quince. Lee's solution is to ask voters to change the state Constitution to make it clear that it is the outgoing governor who appoints the justices who would be sworn in on the very day the governor leaves office. The resolution, SJR 1188, would allow the outgoing governor to fill a "prospective vacancy" for a judicial opening that occurs when his term ends from a list of candidates supplied by a Judicial Nominating Commission.
However well-intended, this appears to be a Republican power grab aimed at stacking the seven-member Supreme Court for decades if Gov. Rick Scott wins re-election this fall. A governor who has been ousted by the voters or who has completed eight years in office should not be able to extend his influence this way as he departs. This change would inject even more politics and less accountability into the judicial appointment process. Surely the next Constitution Revision Commission can create a more reasonable solution to this timing question when it meets in 2017.
The more pressing problem is the erosion of the independence of the judicial nominating commissions that nominate candidates for the governor to appoint to the bench. Under Bush, the law was changed from the original system in which the governor appointed three commission members, the Florida Bar appointed three and those six then appointed three members of the public. The 2001 change gave the governor the authority to appoint all nine members, although four of the nine must come from lists supplied by the Bar. Now Scott has become the first governor to reject entire Bar lists and demand new lists without explanation. The Times/Herald capital bureau reported that has occurred at least 16 times, so clearly Scott is imposing an ideological litmus test on the commissions that nominate candidates for the bench. The predictable result: Fewer candidates willing to be on the Bar lists for nominating commissions, and less diversity on the nominating commissions and in the judiciary.
The late Gov. Reubin Askew was the driving force to reform the courts and create the original judicial nominating commissions to ensure a more independent judicial system. If senators were genuine in their interest in reform, they would restore the independence of those commissions. Yet less than two weeks after Askew's funeral, the Senate is headed in a different direction today. Senators should reject the proposed constitutional amendment that would politicize and pack the Florida Supreme Court, and if the amendment makes it to the November ballot voters should kill it.