Florida Supreme Court’s future part of governor race

Amendment 8 is off the November ballot. That’s good for Florida, but the decision could inflame one of the state’s biggest legal/political battles.

In a 4-3 opinion, the Florida Supreme Court last week upheld the trial judge who ruled that Amendment 8 would have misled voters. Supporters called the proposal civic-minded education reform. In fact, Amendment 8 sought to promote charter schools over traditional public schools by removing any local oversight of charters.

Collier County School Board member Erika Donalds continued this misrepresentation in her recent op-ed article for the Sun Sentinel. Donalds, who sponsored the proposal as a member of the Constitution Revision Commission, wrote that the ballot language didn’t mention charter schools because the proposal was about “opportunities for innovation not limited to charter schools.”

No. Supporters wrote the proposal that way to conceal their intent. So the court majority, like the trial judge, correctly found that the language was deceptive. Unlike previous revision commissions, this one tried to make policy through its proposals, not update Florida’s government document. Donalds was among the most ideological of the 37 members.

Three justices in that majority were Fred Lewis, Barbara Pariente and Peggy Quince. Their terms expire on Jan. 7, the day before Gov. Rick Scott leaves office, because they will reach the mandatory retirement age of 70. Scott claims that he should fill those vacancies, not his successor. Democrats disagree.

Republicans who back Scott likely will be even more impassioned after the Amendment 8 decision. Predictably, they will portray Lewis, Pariente and Quince as “judicial activists” rather than as jurists who followed years of precedent that neither politicians nor special interests can try to slip one by the voters under the veneer of constitutional reform.

Scott has appointed just one of the seven justices – Alan Lawson, who wanted Amendment 8 on the ballot. Democrat Lawton Chiles appointed Lewis and Pariente. Quince’s vacancy also came during a transition – from Chiles to Republican Jeb Bush.

The two agreed on Quince. Chiles could afford to seem gracious because he already had appointed five of the justices. Bush had to cooperate or oppose the court’s first African-American female.

If Democrat Andrew Gillum beats Republican Ron DeSantis, no one should expect similar collegiality between Gillum and Scott. Even if DeSantis wins, there might be a court fight. At stake is the privilege of choosing a near majority on the court. Though a nominating commission must recommend finalists, the governor’s choice is not subject to Florida Senate confirmation.

In December, the Florida Supreme Court rejected a lawsuit by the Florida League of Women Voters seeking to prevent Scott from replacing Lewis, Pariente and Quince. All the justices except Lewis said the litigation was premature because Scott hasn’t made the picks. He only has asserted his right to make them.

Here’s another potential twist. If Scott defeats Bill Nelson, he will be sworn into the U.S. Senate four days before his term as governor ends. In that scenario, Lt. Gov. Carlos Lopez-Cantera might try to appoint the new justices.

Politics long has been part of judicial appointments and elections in Florida. The politics began to get worse, however, in 2001.

That year, the Republican-controlled Legislature passed and Bush signed a bill that changed the makeup of the ninemember judicial nominating commissions. There’s one for each of the 20 circuits – Broward (19th) and Palm Beach (15th) are their own circuits – the five appellate courts and the Florida Supreme Court.

Previously, the governor picked three commissioners, the Florida Bar picked three and those six picked the other three. Bush and the Legislature allowed the governor to veto any picks by the Bar. In practice, the governor now can control who serves on the commission and thus whom the commission picks as finalists from those who apply.

Voters fill some trial court vacancies. The governor, though, appoints all appellate judges and Supreme Court justices. So this new power matters most at the highest levels of Florida’s court system.

Charles Canady, Ricky Polston and Lawson – the Amendment 8 dissenters – are considered the Supreme Court’s “conservative” wing. Scott would like to create a like-minded six-member majority as he leaves. The high court previously has struck down Scott’s overreach on judicial appointments over elections. It would be fitting if the justices foiled him once again as they leave.