By Julio Gonzalez, M.D., J.D.
In a move with significant implications to Florida’s gubernatorial election, the Florida Supreme Court granted an order sought by the League of Women Voters of Florida prohibiting Gov. Rick Scott from naming the successors to three Supreme Court justices scheduled to retire on the same day the Governor relinquishes power to his own successor.
Unlike the federal Constitution, the Florida Constitution requires Supreme Court justices to retire once they reach the age of 70, except that the retiring justices may continue to serve until the last day of their term; the same day the governor’s term ends. Additionally, a Judicial Nominating Commission (JNC) provides the governor between three and six nominees from which to choose their successors.
The JNC is supposed to offer recommendations to the governor within 30 days of the occurrence of the vacancy, and the governor is to appoint his choice within 60 days of certification of the nominations to the governor by the JNC. Article V, Section 20(c)(5) of the Florida Constitution describes the required make up of the board and states that each member of the board serve for four years such that the same JNC members who are presently serving will be serving at the time the new governor takes office.
In Florida, three of the seven Supreme Court justices are scheduled to term out on Jan. 8. Gov. Scott argues that he ought to be making the appointments in keeping with the established precedent of appointing judges in such a manner so as to avoid vacancies. In anticipation of the deadline, Scott instructed the JNC to have its nominations on his desk by Nov. 10.
But the Court disagreed.
In an unsigned order, the Court said that the authority for filling vacancies lies solely with the governor who is elected in the November 2018 election, meaning the winner of the contest between Republican Ron Desantis and Democrat Andrew Gillum. What’s more, the Court said that the JNC did not need to comply with the Governor’s Nov. 10 deadline. The Court was amenable to hearing arguments regarding the time by which the JNC needed to certify its recommendations to the Governor.
(A few weeks before Florida’s primaries, an Obama-appointed federal judge skewed skewed the flow of funds to some election campaigns while sparing others without forewarning, and with significant effects on the outcome of primary elections.)
Who gets to select the next three justices to the Florida Supreme Court is important not only because of the sheer number of appointments, but because the balance of power in the Court hangs on the ballot. At this time, the Florida Supreme Court carries a 4-3 edge of liberals over conservatives. All three retiring justices are liberals.
It is safe to presume then, that if DeSantis wins, the Court will have a 6-1 conservative majority, but if he should lose, the liberal Court will keep its 4-3 lead with perhaps an even more liberal slant considering Gilluim’s strongly leftist positions. What effect a JNC appointed by a conservative governor can have in controlling the political slants of a new, liberal governor’s judicial appointments remains to be determined.
One thing is clear, however, the stakes of the Florida gubernatorial race just got a lot higher. And when the winner takes office, there will be three Supreme Court vacancies.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and cohost of Right Talk America With Julio and Rod. Dr. Gonzalez is presently serving in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.