Dispute over new judges expected

Makeup of Florida Supreme Court will be determined

TALLAHASSEE — A quirk in the state constitution means Florida could be headed to a bruising legal brawl over the ideological balance of the Florida Supreme Court that would decide the future of the court for decades to come.

Three justices — Barbara Pariente, Fred Lewis and Peggy Quince — will be forced under the state constitution’s age limits to retire on Jan. 8, 2019, Gov. Rick Scott’s last day in office. The justices are reliable members of the liberal voting bloc that holds a 4-3 majority on the bench.

Even though the appointments are two years away, both sides are gearing up for a fight.

Scott, a Republican, believes he’ll be able to appoint their replacements on his fi-

nal day in office.

“I’ll appoint three more justices the morning I finish my term,” Scott said last month as he announced Judge Alan Lawson, a conservative, as his pick to replace outgoing Justice James Perry, a liberal, on the court.

Not so fast, Democrats say. Whoever wins the 2018 gubernatorial race and succeeds Scott should have a say, they claim. The appointments are not subject to confirmation by the Legislature.

“The Supreme Court is no place for political gamesmanship,” said House Democratic Leader Janet Cruz of Tampa. “If Governor Scott follows through on this assertion, he risks setting off a contentious legal battle with his successor that would mar the transition process and throw our state’s highest court into uncertainty.”

If Scott names the replacements for Pariente, Lewis and Quince, the court could have a solid conservative majority until at least 2025. That’s when justices Ricky Polston and Charles Canady, the other conservatives on the bench, face mandatory retirement.

The issue of the timing of an appointment to the Florida Supreme Court has come up before. Former Gov. Lawton Chiles, a Democrat, agreed on a joint appointment with former Gov. Jeb Bush to name Quince to the court in 1998 — after Bush won the election but before he took office.

In 2014, GOP lawmakers tried to settle the judicial-appointment question by putting a constitutional amendment on the ballot that would have given Scott clear authority to fill “prospective” vacancies. But 52 percent of the electorate voted against it.

Sen. Tom Lee, R-Brandon, led the push to put the measure on the ballot. He said the Legislature could try to clarify the situation again, or the Constitutional Revision Commission — a panel that will gather this year to propose amendments — could deal with it.

But because voters turned down the last attempt, there’s unlikely to be much political will to try again.

Lee said he thinks Scott is right to assert his position that he has the power to make “midnight” appointments. But Lee also realizes the next governor won’t necessarily have the same view, especially if they are a Democrat.

“If there were some kind of conflict there would be an immediate petition to the [Florida] Supreme Court ... for a declaratory statement on the rights of an outgoing governor,” Lee said.

That, though, would raise the issue of whether the justices themselves should be able to rule on who gets to appoint their successor.

Lee admitted it’s a convoluted situation that would involve “a bit of home cooking” if Pariente, Lewis and Quince had to decide on the issue, but added that he doesn’t think it’ll be as serious as the Bush vs. Gore case that effectively ended the 2000 presidential election.

“As long as the governors can work together, it’s crisis averted,” Lee said.