Scott’s influence over supreme court on hold

Ruling keeps in limbo who’ll replace justices

TALLAHASSEE — The Florida Supreme Court ruled Thursday it is too soon to determine whether Gov. Rick Scott will be able to reshape the state’s highest court on his last day in office.

The decision means there could be a constitutional crisis if Scott and his successor both try to appoint replacements for three retiring justices.

By a 6-1 vote, the court said a case brought by the League of Women Voters wasn’t eligible for review because Scott had not acted yet.

“Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction,” the ruling states.

The League asked the Supreme Court to decide the issue after Scott said he has the power to appoint the successors of Justices Barbara Pariente,

The state justices said the case brought by the League of Women Voters wasn’t eligible for review because Scott has yet to act.

Fred Lewis and Peggy Quince, all of whom must retire by midnight Jan. 7, 2019, the same moment Scott’s second term ends.

The state Constitution requires justices to retire by the end of the term in which they turn 70, and all three will be that age by then.

Pariente, Lewis and Quince make up three votes of the liberal 4-3 majority on the court, so the decision of who gets to appoint their replacements could determine the balance of the court for years to come. Scott has been eager to appoint conservative justices averse to what he calls “legislating from the bench.”

On Thursday, Scott hailed the decision.

“I am pleased that the court upheld Florida law today and dismissed the challenge brought by these political organizations,” Scott said in a released statement. “As long as I am governor, I will continue to use my authority to appoint qualified judges.”

Pamela Goodman, president of the League of Women Voters, said she was disappointed in the decision but isn’t giving up hope that the court could decide in the league’s favor if Scott tries to make the appointments later.

“We were trying to get ahead of the curve; we didn’t,” Goodman said. “But that doesn’t mean the door is closed.”

During oral arguments last month, an attorney for the League argued that if Scott and his successor, the winner of the 2018 election, both claimed the power to replace the justices, it could set off a constitutional crisis.

The Supreme Court has seven members and requires a quorum of five justices to decide cases. If the outgoing and incoming governors picked different justices, who would decide which were legitimate after the three justices leave the bench to retire, the League asked.

Lewis essentially made the same point in his dissenting opinion.

“Contrary to Florida law and the general common law, the majority has now announced that the challenged conduct must have already produced a constitutional crisis and calamitous result before illegal acts of government officials are subject to … review or relief,” Lewis wrote.

Quince and Pariente agreed with the result of the decision but issued a separate opinion stressing the court doesn’t have to wait until Scott tries to appoint the justices to act.

In a sign of how big the stakes are in the case, Scott asked Pariente to recuse herself when she was heard talking with Chief Justice Jorge Labarga after oral arguments ended.

She was caught on a “hot mic” showing Labarga a list of Judicial Nominating Committee members, a panel that recommends nominees to the governor. Scott’s general counsel, Daniel Nordby, who is also a JNC member, argued Pariente’s remarks showed a bias against Scott, but the recusal was denied and she voted with the majority to dismiss the case.

Quince’s appointment is the only other instance of a justice’s retirement coinciding with the end of a governor’s time in office. In 1998, Democratic Gov. Lawton Chiles and Republican Governor-elect Jeb Bush jointly agreed to appoint Quince to clear up any confusion over who had the power to appoint her.