John Romano: Liberals are dreaming when it comes to holding on to Florida's Supreme Court

Published Oct. 17, 2018

This was a smackdown, no doubt about it.

The state Supreme Court just rendered the judicial equivalent of a loud guffaw regarding Gov. Rick Scott's claim he is entitled to replace three retiring Supreme Court justices before he leaves office.

And yet, Scott may still have the last laugh.

Because the way things look right now, Florida's highest court is heading toward rigid conservatism. Unless I'm wrong, in which case the court is heading toward fanatical conservatism.

Sorry Democrats, but those of you giddy about the Supreme Court's ruling this week are going to have to face this possibility. The direction of the court from liberal to conservative has already been under way; the actual signature of future governor Ron DeSantis or Andrew Gillum will merely be the fine print.

You see, the real key here is the Judicial Nominating Commission.

Members of the commission are basically Scott's foot soldiers, and they're sticking around after he leaves office. It's the nine members of that group who sift through all the applicants for the Supreme Court and then nominate three to six candidates for each open position.

And the governor is obliged to choose from that list. By law.

Get it?

Even if Gillum ends up winning, he doesn't get to scour the state looking for kindred judges. He will be obligated to choose from a menu prepared by Scott's personal judicial chefs.

This is the stink bomb Scott is leaving behind. Taking perverse advantage of a relatively new law, he has turned the nominating process into the type of patronage system the state tried to eradicate in the 1970s.

Now some might say this is the spoils of elections and power. And there is a lot of truth to that.

The problem is Scott plays at a different, hyper level of partisanship.

The nominating commission used to be chosen jointly by the governor and the Florida Bar. In 2001, the Legislature rewrote the law giving the governor authority to reject the Bar's choices for the commission.

Neither Charlie Crist nor Jeb Bush ever exercised their veto power over the Bar's choices. In other words, they were okay with diverse views among commission members.

Scott, on the other hand, has rejected more than 100 choices from the Bar, although none on the Supreme Court commission. Still, the number of rejections sent a message that only hard-core conservatives need apply.

Ironically, that defiant approach may be the only hope Scott's opponents have in this fight.

Back in 2009, Crist wanted to reject a nominating commission's list of finalists for a district court vacancy because it lacked African-American candidates. The Supreme Court told Crist he did not have that authority.

But in the ruling, the court left room for a governor to reject a commission's recommendations if it was "tainted by impropriety or illegality.'' Scott's repeated, and clearly partisan, rejection of the Florida Bar's choices for commission seats might be construed as crossing the line of impropriety.

"I think one could make the argument, and make it successfully, that the circumstances are different with the Supreme Court today than they were with the (appeals) court in my situation,'' Crist said Tuesday. "There's a distinction between the two courts, as well as with the way Gov. Scott has totally politicized the process when it comes to the Judicial Nominating Commission.''

And if you don't think Scott's commission veers toward conservative principles, you need to watch video of their interviews for the last Supreme Court vacancy in 2016. The judicial candidates clearly knew what commission members wanted to hear, and played a comical game of I'm-more-conservative-than-you.

Nearly every candidate claimed to be a "constitutional originalist'' and praised late U.S. Supreme Court Justice Antonin Scalia, a hero in conservative circles.

When asked which state Supreme Court justice he might emulate, one candidate spoke so reverently about the conservative wing's Charles Canady that the commission practically stood up and saluted.

They cut his interview short after that answer and, hours later, named him a finalist.

So, yes, it's reasonable to assume the current commission will come up with a list that starts at strongly conservative and then veers even farther right.

That leaves two questions yet to be answered:

Does Gillum win?

And can he convince the Supreme Court that Scott's maneuvering with the nominating commissions constituted overreach?