You may have heard that three of the seven justices on the Florida Supreme Court are required to retire on January 8, 2019, when their present terms expire. You may also have heard Governor Scott’s statements that he intends to appoint their replacements before he leaves office. Yesterday, the supreme court ended that plan by ruling that the state constitution requires Scott’s successor to make those appointments, not Scott.
Framing that ruling as a complete loss for Scott is easy. Too easy. And wrong. He certainly wanted to make the appointments. But treating the ruling as placing the appointments solely in the hands of the next governor overlooks the process for appointing appellate judges in Florida.
To reduce the impact of raw politics should a governor directly select appellate judges, and to avoid the troubles created when appellate judges are elected by popular vote, Florida’s constitution utilizes judicial nominating commissions. A “JNC” exists for the supreme court, as well as each of the state’s five appellate districts. Each JNC’s role is to nominate between three and six persons to fill any vacancy on those courts, and the governor is required to select from those lists when making appointments.
So if a supreme court justice retires, the supreme court JNC will call for applications, conduct interviews, and ultimately certify a list of three to six persons qualified to fill the seat. The supreme court has previously ruled that, under the constitution’s language, the governor cannot reject a JNC’s list. The governor must choose one of the nominees on the list and must do so within 60 days of when the nominations have been certified.
The current dispute involves imprecision in the constitutional language: what happens when the governor and an appellate judge leave office on the same day? That will occur in January, and the stakes are magnified because the court at issue is the supreme court, three vacancies will occur at the same time, and all three retiring justices are part of a current four-justice majority that follows a progressive judicial philosophy. If all three are replaced by justices with conservative judicial philosophies, then a 4-3 progressive court will shift to a 6-1 conservative court. That would be a massive change in how the supreme court interprets law, and one that conservative voters—and Governor Scott—have eagerly awaited.
Each JNC is made up of nine commissioners. Five of them are directly appointed by the governor. The other four are also appointed by the governor but must be selected from lists submitted by The Florida Bar. All acts of a JNC must be made through the agreement of five or more members. Do the math.
If you assume that Governor Scott and his advisors have seen this coming—and, of course, they have—then you can safely assume that he has directly appointed five commissioners who share his views on what philosophy a judge should bring to the bench. Scott has said repeatedly that he prefers judges with a conservative judicial philosophy: follow the law as written and originally intended, don’t legislate from the bench, and allow the legislature to set public policy. You can also assume that, in choosing the other four commissioners who came through the bar’s nomination process, he has selected persons who most closely agree with him.
The result is that a JNC largely shaped by Scott will create the lists from which the next three supreme court justices must be selected. If the JNC nominates only strong judicial conservatives, then whoever they are, and who actually selects from among them, will hardly matter. The supreme court’s overall approach to decision making will undergo a remarkable shift.
Can this be derailed? In theory, it might be possible. The JNC members serve staggered terms, and the terms of two directly appointed commissioners and one bar-nominated commissioner expire on July 1, 2019. If the uncertainties surrounding the appointment process somehow continue past that date, then the next governor could replace them with persons who hold a different view regarding proper judicial philosophy, and the lists that new JNC would send the governor could be quite different from the lists the current commission would submit.
But absent serious and prolonged litigation over who has the power to make appointments, or when, the appointments should be made early in 2019 from lists submitted by the current, Scott-shaped JNC. In this sense, the current lawsuit challenging Scott’s authority helps his ultimate goal regardless of how the current supreme court rules. So long as the supreme court soon brings clarity to the process, then regardless of who the next governor will be, the three vacancies will be filled from nomination lists generated by a JNC that Scott shaped and that shares his judicial philosophy preferences.
He wins tomorrow by losing today.