In a fascinating convergence of events, three Florida Supreme Court justices will begin mandatory retirement on the same day that Governor Rick Scott’s term as governor also ends: January 8, 2019. To make matters even more interesting, the three retiring justices belong to a four-person liberal majority that has outnumbered the three conservative justices on the Court and therefore has controlled case outcomes for years.
Scott, a Republican, stated plans to fill the seats with jurists of his choosing, and, on September 15, 2018, began the typical process of filling judicial vacancies by directing the Supreme Court Judicial Nominating Commission (“JNC”) to begin soliciting applications for the vacancies.
But on Monday, October 15, 2018, the Court took steps to halt Scott’s plans. Granting a petition for writ of quo warranto, the Court held that Scott exceeded his authority when he set a deadline for the JNC to submit its list of judicial applicants on or before November 10, 2018. The Court did not explicitly order the JNC to stop its applicant search, but it stated that the JNC is independent of the Governor and therefore not bound to the Governor’s deadlines. The Court further held that only Scott’s successor could fill the three vacancies.
The single page decision failed to give any reasons for the Court’s holdings.
This is not the first time there has been a vacancy on the Florida Supreme Court during a gubernatorial election year in Florida. Indeed, one of the three justices facing mandatory retirement on January 8, 2019, Justice Peggy Quince, was nominated to fill a vacancy that occurred under the same circumstances under which she is retiring—her predecessor retired on the same day Democrat Lawton Chiles’ term as Governor ended. Chiles convened his JNC in the months prior to the vacancy occurring, as Scott had done on September 15, and the JNC nominated Quince on October 26, 1998. To solve the exit day standoff, Chiles’ successor, Republican Jeb Bush, offered to work with Chiles to fill the vacancy during Chiles’ lame duck period. Together they both interviewed the JNC’s nominees and together agreed that Quince would be appointed to the vacancy. On December 11, 1998, for a term beginning on January 5, 1999, Chiles appointed Quince to the Florida Supreme Court.
Interestingly, all three justices facing mandatory retirement on January 8, 2019—Justices Quince, Fred Lewis, and Barbara Pariente—were nominated by the JNC several weeks before their predecessors’ vacancies occurred, namely, on October 26, 1998, October 12, 1998, and October 10, 1997, respectively. Not only that, but each and every justice previously appointed to fill a seat on the Court that became available because of mandatory retirement for the past forty years was also nominated by the JNC several weeks before his or her predecessor retired.
Has the JNC in Florida been flagrantly violating the Florida Constitution for the past forty years? Did Chiles misuse his authority by requiring the JNC to supply its nominees in advance of the vacancy occurring? Has Florida been in a state of constitutional crisis all of these years and only now have black-robed heroes appeared to stop these horrible nominations that have been flung upon an innocent and unsuspecting public?
Or is a liberal-majority state supreme court trying to do everything in its power to stop a Republican governor from exerting his influence over that same Court? Clearly this Court won’t stand by as Scott and the JNC attempts, like every Governor and JNC in the past, to prepare for three important vacancies appearing soon on the highest court in the state. These three justices might be facing retirement, but they will not go out without a fight.
It’s possible that Scott could ignore the Court and attempt to forge ahead, but that will force his staff, the JNC and even nominees to “choose sides” about which branch of state government they will obey. Putting folks into that dilemma doesn’t sound pretty, and Scott has his sights set on the 2018 U.S. Senate race.
Additionally, there is one more circumstance helpful to Scott’s hopes for changing the ideological makeup of the Court: Whoever wins the gubernatorial race will still have to work within the list of nominees produced by the JNC—a body whose members were appointed by Scott. The Governor cannot reject or revise in any way the JNC’s list. So, if the JNC shares Scott’s convictions about the type of temperament and judicial philosophy the best jurists will exhibit, Scott doesn’t need to go to war with the Court. He can just let the political process play out, and allow the JNC to do its job with whoever is the next Governor of Florida.