The Florida Supreme Court reached the right conclusion by ruling that the next governor has the authority to appoint three new justices to the court rather than departing Gov. Rick Scott. That is practical and reasonable, and it reflects the will of the voters. The entire screening process should start fresh, because it has been politically corrupted and there may be well-qualified candidates who did not apply as Scott tried to stack the court on his way out the door.
The court's one-page order issued Monday resolves a long-simmering dispute over whether the outgoing or incoming governor can appoint new justices in these situations. Justices R. Fred Lewis, Barbara Pariente and Peggy Quince are leaving the court because of the mandatory retirement age of 70, and their terms end Jan. 7. It would defy logic and democratic values that the outgoing governor could appoint their successors minutes or hours before the new governor is sworn into office Jan. 8.
As long as the retiring justices do not leave early and the new governor takes office immediately at the start of his term, the court ruled, the new governor gets to appoint the new justices. That means the new governor probably will be sworn into office in the opening minutes of Jan. 8, but the traditional ceremony always can be held later that day.
The mechanics of how this will work remain unclear. Scott started the process for screening Supreme Court applicants last month, and 59 have applied. The Judicial Nominating Commission has scheduled the interviews to begin on Nov. 3, three days before the election, and Scott wanted the commission's list of nominations to be sent to him by Nov. 10. The Supreme Court said Scott exceeded his authority by setting that deadline, and it will hear arguments about when the nominations can be submitted on Nov. 8 -- two days after the election. Whenever the nominations are submitted, the Florida Constitution says the governor has up to 60 days after receiving them to appoint the new justices.
But the Supreme Court failed to address whether the screening process by the JNC should continue now. If it does, whether Republican Ron DeSantis or Democrat Andrew Gillum is elected as the next governor may be of little consequence. The nine-member JNC has been entirely approved by Scott, and the Supreme Court ruled in 2009 that a governor cannot reject the entire list of JNC nominees and start over. The JNC could load up its nominations with Scott favorites, which could be fine with DeSantis but unfair to Gillum.
The judicial nominating commissions as envisioned by then-Gov. Reubin Askew in the 1970s were supposed to take political patronage out of judicial appointments. For decades, each JNC was comprised of three members appointed by the governor and three members appointed by the Florida Bar, and those six would appoint the final three members. That changed in 2001 under then-Gov. Jeb Bush, when the Florida Legislature changed the law to give the governor five appointments and the authority to approve or reject four appointments proposed by the Florida Bar. Scott has exploited that authority by insisting on conservative JNC members and often rejecting the Bar's initial selections as he tried to remake the judiciary much as presidents try to do in the federal courts. The nine-member Supreme Court JNC includes Fred Karlinsky, a close Scott ally and fundraiser; Jesse Panuccio, a former member of the Scott administration; and Jason Unger, a longtime Republican lobbyist and lawyer. Even a pretense of a nonpartisan screening process for judicial appointments is long gone.
If DeSantis is elected governor, he may be satisfied with appointing justices from lists created by a Scott-driven nomination process. If Gillum is elected, he will have to find a way to challenge the validity of that process through the courts or by other means. The Florida Supreme Court took an important step this week by finally concluding that governors cannot appoint justices just as they leave office. But that is only the first step. The screening under way for three new justices should be halted and restarted under the next governor, and the entire nomination process should be overhauled to protect the integrity of a judiciary that should be nonpartisan and independent.