Reject Rick Scott’s bid to pack high court

Late last year, Gov. Rick Scott filled a vacancy on the Florida Supreme Court with Judge Alan Lawson, an appellate court judge who began his career on the bench in Orange County. There was no doubt about Scott’s authority to name a successor to outgoing Justice James E.C. Perry, who was forced to leave the high court by the state’s retirement age for judges. Elections have consequences, as the saying goes.

But Scott also declared on appointing Lawson that he intended to name successors for three more justices due for retirement on Scott’s last day in office in 2019, on the same day his successor as governor is to be sworn in. Filling those seats at the last minute would allow the outgoing governor to leave his stamp on the court for years to come by upping his appointments to four of its seven justices.

This judicial power play is, at best, legally dubious. At worst, it flies in the face of a clear contrary verdict in 2014 from Florida voters. We urge the state Supreme Court to rule out Scott’s scheme.

Lawyers have argued for years about whether the outgoing or incoming governor in Florida has the power to fill judicial vacancies on the day in January when the chief executive’s office changes hands. In a 2006 advisory opinion, the Supreme Court concluded that the appointment power belongs to the incoming governor, but such opinions aren’t legally binding.

In 2014, Florida’s Republicanled Legislature made a bid to settle the question in favor of an outgoing governor through a proposed constitutional amendment on that year’s ballot. The amendment needed support from at least 60 percent of state voters to pass. It wasn’t even close; the amendment actually was outvoted, 52-48.

Yet despite that lopsided result, Scott, serving his second and last term, has declared he will name the successors to the three justices who are scheduled to leave office on the same day as he does. This declaration fits a longstanding pattern in Tallahassee. Voters pass judgment on constitutional amendments — including yes on banning gerrymandering, yes on protecting more land from development, no on lameduck appointments — and state leaders undercut or ignore the results.

The three justices who will be retiring — Fred Lewis, Barbara Pariente and Peggy Quince — are part of the state Supreme Court’s liberal majority. They have repeatedly frustrated Scott and his fellow conservatives by ruling against their initiatives. But as we pointed out in opposing the 2014 amendment, a change that benefits an outgoing Republican governor now will probably enhance the power of an outgoing Democratic governor in the future. Temporary partisan goals are a poor basis for policies with longterm implications. This month two voting-rights groups, the Florida League of Women Voters and Common Cause, asked the state Supreme Court to block Scott from appointing the successors to the three justices. In a motion filed by their attorneys, the groups argued that state law and the constitution support their position. But they also invoked the failed 2014 constitutional amendment. Justices must ask themselves: If the law and constitution back up Scott’s position instead, why did legislators from his party feel the need to draft and pass the amendment to present it to voters for approval?

The high court has asked Scott to respond to the groups’ petition. We agree with the groups that it would be far better for the Supremes to settle the issue before the next gubernatorial campaign goes into high gear. Voters deserve the right to know well in advance whether Scott or his successor will be reshaping the court.

We also agree with the groups that “a newly-elected governor is not only more accountable [for appointments], but also better represents the will of the people who just voted than someone elected four years ago.”

We call on justices to bear in mind the defeat of the 2014 amendment. That verdict is worthy of respect from the Supreme Court. Elections do have consequences.

This judicial power play is, at best, legally dubious.