Romano: Rick Scott's do-it-yourself guide to rigging a Supreme Court

Gov. Rick Scott is determined to leave his mark on the Florida Supreme Court by replacing three retiring justices early next year. Scott has already gotten the process rolling with his handpicked Judicial Nominating Commission.. [AP Photo/Mark Wallheiser]
Gov. Rick Scott is determined to leave his mark on the Florida Supreme Court by replacing three retiring justices early next year. Scott has already gotten the process rolling with his handpicked Judicial Nominating Commission.. [AP Photo/Mark Wallheiser]
Published Sep. 15, 2018

His time in Tallahassee is coming to an end. Eight years of triumph or shambles, depending on your point of view. And yet, Rick Scott's legacy may not be written until his final minute as governor.

For several years, Scott has been plotting a judicial coup that could dwarf every other accomplishment or misstep along the way.

On his final day in office, Scott intends to remake the one branch of government — the state Supreme Court — that has eluded Republican control for the past two decades.

Does he have the law on his side? That's highly debatable.

Does he have a scheme to pull it off? He just might.

To set the stage, three Supreme Court justices face mandatory retirement on Jan. 7, which is also Scott's final day in office. Should he get to fill those seats, a court that leans 4-3 toward the left would swing 6-1 toward the right.

Of course, if Ron DeSantis wins the governor's race in November, this debate becomes moot. While he and Scott may not have the exact same replacements in mind, they'd just be choosing different branches off the same ideological tree.

But if Andrew Gillum is elected, the transition will get ugly.

Scott's team has previously argued that the Supreme Court will have vacancies at 12:01 a.m. on Jan. 8, and a new governor will not be sworn in until later that afternoon. That would, the theory goes, give Scott time to make the appointments.

But Gillum could decide to take the oath of office at midnight, and theoretically render those appointments meaningless. Constitutional crisis, anyone?

"It's a race to midnight. If I can date myself, it'll look like the scene in Back to the Future where everyone is watching the clock and waiting for it to strike 12,'' said Louis Virelli, a constitutional law expert at Stetson University. "That is no way for power to be transitioned.''

(If Scott is elected to the U.S. Senate, Lt. Gov. Carlos Lopez-Cantera would step in as his proxy in early January.)

The League of Women Voters recognized this potential showdown more than a year ago, and asked the Supreme Court to step in and block Scott's plan. The justices, however, dismissed the case because Scott had not yet done anything unconstitutional and so the petition was ruled premature.

But, in dismissing the case, the justices also seemed to suggest an incoming governor would have the authority to make judicial appointments. They even got Scott's attorney to acknowledge that.

"If the terms have expired and the new governor has taken office,'' Scott's general counsel Daniel Nordby said during oral arguments, "then the appointment authority would be there.''

So that gives Gillum a leg up in this midnight run, right?

Not necessarily.

For a guy who claims to be an outsider, Scott can play the political game with the best of them. This week, his office asked the Judicial Nominating Commission to begin the process of finding Supreme Court nominees.

Scott also suggested he would follow the precedent of the late Gov. Lawton Chiles who allowed incoming Gov. Jeb Bush to interview Supreme Court nominees and jointly make a choice.

For Scott, this was a stroke of genius. It makes it sound as if he's being magnanimous while following an accepted tradition.

Except, I think it's a load of hooey.

In 1998 when Chiles and Bush teamed up, the rules were different. Back then, the nominating commission was made up of nine members — three appointed by the governor, three by the Florida Bar, and the final three chosen by the first six.

But in 2001, the Legislature gutted that system. The governor now gets to name five members of the commission, and has veto power over the Florida Bar's four picks. Bush and Charlie Crist? They accepted every Bar recommendation.

Scott, on the other hand, has rejected dozens. In other words, he keeps vetoing choices until the nominating commission looks exactly the way he wants.

Why is this important? Because a governor can only choose judges off the commission's list.

In 2009, Crist tried to dismiss a list of judges given to him by the nominating commission because it did not include minority candidates. Crist was sued, and the Supreme Court ruled that a governor was required to use the commission's list.

Get it?

Scott has carefully packed the nominating commission with appointees who will dance to whatever tune he plays. And now that they've begun choosing nominees, you can bet there will be no one on the list Gillum would choose for the Supreme Court.

So Scott can claim to be playing nice with an incoming governor but has, in fact, already stacked the deck.

If this sounds complicated, it is. If it sounds Machiavellian, it definitely is.

Presumably, if Gillum wins in November, he will ask the Supreme Court to take another look at Scott's strategy since the commission's involvement means it is no longer a theoretical argument.

Another potential curve is the chief justice has the authority to extend a justice's tenure beyond its normal expiration to finish up cases. That means, the three retiring judges may not have to leave on Jan. 8 if they are dealing with a case involving their own replacements.

Hear ye, hear ye.