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Monday, May 21, 2018
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Editorial: Incoming governors should appoint supreme court justices

Give credit to state Sen. Tom Lee for addressing a looming question that has the potential to mire the state in a constitutional crisis.

Three of the seven Florida Supreme Court justices are nearing the mandatory retirement age of 70. They will be forced from the court when their current six-year terms end on the same day in January 2019 that the winner of the 2018 gubernatorial election takes office.

Florida law is unclear on whether the outgoing governor or the incoming governor should appoint the justices’ successors. Lee is proposing a constitutional amendment that would assign that duty to the outgoing governor.

Lee, a Brandon Republican, is right to force lawmakers to resolve this question, and the sooner the better. Leaving this until after this year’s gubernatorial election will infuse the question with hyper-partisan politics. But Lee’s decision to leave the appointment power to the outgoing governor is flawed. The outgoing governor will have lost an election, chosen not to seek re-election or be prohibited from serving again because of term limits.

The appointment power should be vested in the newly elected governor about to begin a four-year term after winning a popular vote. It makes little sense to leave a decision as consequential as Supreme Court appointments to someone who lost an election or couldn’t run because of term limits and might be tempted to pack the court with partisan picks for legacy reasons.

Lee should amend the proposal to empower the incoming governor with that appointment authority, and lawmakers should vote to put the measure before the voters this November.

Partisan politics hangs over the decision because the three retiring justices — R. Fred Lewis, Barbara J. Pariente and R. Fred Lewis — are considered liberal justices. If Gov. Rick Scott wins re-election this year, and the measure as proposed by Lee is passed by voters, he would be appointing the justices as he leaves office.

Lee says that’s not a factor in deciding to have the outgoing governor appoint the justices. He says previous court decisions have supported the outgoing governor’s right to appoint. Besides that, he says, it’s impossible to know whether Scott or his Democratic challenger will win in November, so he can’t be accused of trying to rig the appointment of conservative justices in 2019.

We trust Lee is genuinely trying to avoid an ugly legal battle five years down the road if this question remains unresolved. But the power should rest with a newly elected governor, not with a lame duck who has nothing to lose.

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