The Florida Supreme Court punted and invited a constitutional crisis by declining to decide now whether Gov. Rick Scott can appoint three new justices on the day he leaves office. Outgoing governors should not be able to pack the court on their way out the door, and voters have made clear they oppose such a brazen power play. Since the court has failed to act, perhaps the Constitution Revision Commission can put an amendment on the 2018 ballot that would allow voters to provide clarity.
The Florida League of Women Voters and Common Cause asked the Supreme Court to rule that an incoming governor would appoint new justices when current justices are required to retire on the same day the outgoing governor leaves office. Attorneys for Scott asked that the lawsuit be dismissed, asserting that the three departing justices will reach their mandated retirement the end of Jan. 7, 2019, while Scott will remain until his successor is sworn into office on Jan. 8.
Ruling last week, the court said it couldn’t act on a matter that hasn’t yet happened. The majority expressed no opinion on the core issue. "The matter the league seeks to have resolved is not ripe," the majority wrote, "and this court lacks jurisdiction."
That opinion was appropriately criticized by Justice R. Fred Lewis, who warned that the court may have invited a "constitutional crisis" and lowered the bar for public protections by requiring that a "calamitous result" occur before Floridians could seek any legal relief. Florida law has generally allowed for legal intervention to prevent "significant impacts on the operation of government," Lewis wrote — a commonsense, reasonable and logical standard "the majority now negates."
"Magnificent trees cut," he wrote, "pristine waters fouled, and unthinkable harm inflicted upon our citizens, which may not be prevented when the actor plans and even announces his intentions. Today, we have a new test."
Justices Peggy Quince and Barbara Pariente agreed with the court majority’s decision but not its reasoning, arguing the court had the right to act prior to the governor appointing a justice but leaving open the chance that Scott would not infringe upon the authority of his successor. One of Scott’s lawyers even conceded in oral arguments that Scott may not have the authority to make the appointments.
This issue isn’t new, benign or particularly difficult for voters to understand. Previous governors from both parties have sought to prevent this power grab during a transition. Former Govs. Bob Graham, a Democrat, and Bob Martinez, a Republican, both avoided potential confrontations by allowing their successors to fill court vacancies. Facing this situation in 1998, the departing Democratic Gov. Lawton Chiles and incoming Republican Gov. Jeb Bush agreed to interview candidates before jointly naming a new Supreme Court nominee.
Florida voters recognized the risks of allowing a departing governor to pack the courts and rejected a constitutional amendment in 2014 that would have clearly given the appointment authority to the outgoing governor. But the court’s ruling last week shows that the voters’ intent needs to be spelled out clearly in the state Constitution. The Constitution Revision Commission should put a measure on the ballot next year that clearly defines that term-ending appointments are made by an incoming governor. But don’t hold your breath, because it would take a minor miracle for members of the commission appointed by Scott and his allies to take this issue up.
This is a political issue as much as a constitutional one. The three retiring justices — Lewis, Quince and Pariente — lean toward the liberal side, and in replacing them, Scott sees an opportunity to shape the political balance of the court for a decade or more. But no fair, clear reading of term limits would allow this. If voters don’t get to clarify the issue, it will be back before the court with little time for thoughtful deliberation.