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Court packing? Florida Republicans wrote that playbook

Amid all the questions Joe Biden is facing, here’s a history lesson on the GOP power moves to take over Florida’s Supreme Court.

The following first appeared in the Buzz political newsletter, a weekly dive into the power, politics and influence shaping Florida from Political Editor Steve Contorno and the Tampa Bay Times politics team. Click here to subscribe

The Rundown: The third and final day of Judge Amy Coney Barrett’s testimony ended as the sprint toward her confirmation continues. We’re out of breath just following it. If you missed it, here are some of the top exchanges.

Like Patches O’Houlihan, Biden has dodged questions of whether he’d add more justices to the high court to tilt the balance after Trump’s three nominations swung the court to the right. (This week he finally said, “I’m not a fan.”) This concept is called “packing the court.” And anyone watching Republicans in Florida over the past decade would know all about it.

It’s time for a history lesson into 20 years of the Florida GOP using any means necessary to shift the balance of the state Supreme Court. 

2001: Changing who nominates the justices. No one set Florida’s high court on a path to politicization more than former Gov. Jeb Bush. Upset with a series of court rulings against him, Bush set out to change how judges are chosen. The little-known but immensely important judicial nominating commissions are tasked with providing governors a list of judges to choose from whenever there is a vacancy.

Until 2001, the nominating commissions were made up of three members selected by the Florida Bar, three selected by the governor and those six selected three more. That arrangement was created 30 years earlier to eliminate politicization in the selection of judges. But Republican lawmakers passed a bill giving the governor the authority to appoint all nominating commission members.

Since then, Florida’s governors have chosen political allies, lobbyists and others with conservative leanings to the nominating commissions. Guess what happened next? The commissions' picks became much more conservative (read this). This year, they offered just one Black jurist: Renatha Francis, who wasn’t legally qualified to be on the Supreme Court.

Also: this happened!

2011: Packing the court. A decade later, the liberal justices from previous Democratic governors were still thwarting Republican plans. So House Speaker Dean Cannon hatched a plan to pack the Florida Supreme Court with three more justices and split the court into two factions.The five most senior justices (including all the liberal-leaning ones) would handle criminal cases, including death-penalty cases. The other five — including three justices all appointed by Gov. Rick Scott — would handle civil cases, giving Republicans a solid advantage on court cases such as redistricting. House Republicans, including then-Rep. Matt Gaetz, voted for it. The idea ultimately died in the Senate.

2012: Ousting ‘liberal’ justices. Supreme Court justices are appointed by the governor, but every six years, voters have a chance to vote them out. (There’s one justice on the ballot this year.) No justice has ever been voted out, but in 2012, the Florida Republican Party, backed by Koch brothers money, tried to oust three of the court’s more liberal-leaning justices. The three justices had to fundraise to defend themselves against this extraordinary effort. But the GOP failed; voters overwhelmingly chose to keep the justices.

2014: Who picks the justices? Those three liberal justices were set to retire on Jan. 8, 2019, the same day Scott’s successor was going to take office. So who gets to pick their replacements — Scott or his successor? The state Constitution isn’t clear. So in 2014, GOP lawmakers put on the ballot another court packing scheme to change the Constitution so Scott could fill all three seats, blocking out any Democrat who might win the governorship in 2018. Voters roundly rejected it.