In a move likely to provoke new legal challenges, Gov. Rick Scott wants the Supreme Court Judicial Nominating Commission to get to work seeking applicants for three upcoming vacancies on the state’s highest court.
The nine-member panel has 60 days to submit three to six names for each vacancy.
“To minimize or avoid any period of vacancy on the Supreme Court, the nominating process must begin well in advance of these vacancies,” Scott said in a statement.
The Supreme Court JNC is staffed by Scott allies. They include lobbyist Fred Karlinsky and Jesse Panuccio, the governor’s former legal adviser and state agency head who’s now a high-ranking Trump administration official in the Department of Justice.
A highly contentious legal and political battle surrounds the three seats, held by justices Fred Lewis, Barbara Pariente and Peggy Quince. All three must depart in January because of a mandatory age 70 retirement limit.
Lewis and Pariente were appointed by Florida’s last Democratic governor, Lawton Chiles. Quince was jointly chosen by Chiles and his successor, Jeb Bush, shortly before Chiles died in December 1998 near the end of his second term.
All three justices have issued decisions in major cases in opposition to the Scott administration. In a statement Tuesday, Scott did not offer even any perfunctory praise to the three for their service; rather, he wrote icily that they “have made their mark on the state’s jurisprudence.”
In his statement, Scott said he would follow the Chiles-Bush precedent of cooperation whether Democrat Andrew Gillum or Republican Ron DeSantis is elected governor in November. Chiles was leaving office and Bush agreed to the appointment, deciding not to pick a fight his first days in office over a qualified justice.
“Governor Scott intends to follow this precedent and will invite the governor-elect to conduct his own interviews of the nominees following the general election,” Scott’s statement said. “The governor’s expectation is that he and the governor-elect — like Governor Chiles and then Governor-elect Bush — will agree on the selection of three justices who will serve with distinction.”
That could get interesting if Gillum, a staunch progressive who once got into a spat with Scott about Tallahassee’s response to Hurricane Hermine, gets elected. Early general election polling has shown Gillum leading DeSantis by a couple of points.
Geoff Burgan, Gillum’s campaign spokesman, implied in a statement that Scott is overreaching.
“In our understanding of the Constitution, the next Governor will appoint the next three Supreme Court justices,” he wrote.
Meanwhile, DeSantis’ campaign said in a statement that he “looks forward to working with Governor Scott” to appoint justices who aren’t “judicial activists who legislate from the bench,” a common talking point throughout his campaign.
DeSantis has often compared these three appointments, which have the potential to dramatically alter the philosophical makeup of the state’s highest legal authority, to the national drama surrounding President Trump’s U.S. Supreme Court nominations.
But that national spectacle could be replicated in Florida.
“Rick Scott expects the next governor to cooperate because he expects the next governor to be Ron DeSantis,” said Steve Vancore, a Democratic pollster and consultant. “If Gillum is elected this will be huge. It will be defining of the next governorship.”
Vancore predicted that if Gillum wins, he will challenge Scott in court and use this as an “opening salvo.” But he cautioned that it’s possible DeSantis, a strict conservative ideologue, could still push back on Scott’s choices, though it wouldn’t be nearly as explosive.
The three justices’ terms expire on Jan. 7, 2019, Scott said. The new governor will be sworn in the next day.
This drama is further complicated by the fact that if Scott wins his U.S. Senate bid against incumbent Bill Nelson, Scott will leave office on Jan. 3 to be sworn in as a senator.
It’s possible he can make his picks before then, but if the process drags on, Lt. Gov. Carlos Lopez-Cantera may have to finish what Scott started as acting governor for several days.
The question of who will appoint the next justices has been swirling in Tallahassee for months.
The Supreme Court in December could have resolved this murky legal area, but dismissed a lawsuit by the League of Women Voters and the Common Cause of Florida, which sought to block the governor from acting on the three vacancies.
The court said that action was not “ripe” because Scott hadn’t made the appointments yet. Here is a key part of that December order:
In that case, Lewis authored a sharply written dissent, blasting his colleagues for dismissing the League’s lawsuit.
“Contrary to Florida law and the general common law,” Lewis wrote, “the majority has now announced that the challenged conduct must have already produced a constitutional crisis and calamitous result before illegal acts of government officials are subject to quo warranto review or relief.”
During the Republican primary for governor, too, the topic of who would be allowed to appoint the justices became a flash point. During the Aug. 8 Jacksonville debate between DeSantis and Commissioner of Agriculture Adam Putnam, Putnam challenged DeSantis’ notion that he would be in charge of shaping the state Supreme Court’s makeup.
“They’re not your appointments,” Putnam told DeSantis onstage. “They’re Gov. Scott’s appointments. Unless you’re ... now taking the legal position of the League of Women Voters, they’re Gov. Scott’s appointments.”