A bill portrayed as an attempt to keep politics out of judicial appointments dissolved into a tense political dispute Tuesday as the Republicans on the Senate Judiciary Committee voted out a constitutional amendment to give the next governor the ability to stack the court -- against the wishes of Democrats.
The proposal by Sen. Tom Lee, R-Brandon and chairman of the committee, on its surface looks like a simple attempt to clarify Florida law that now raises questions about whether an outgoing governor or his incoming successor is entitled to make the appointments to the Florida Supreme Court when the vacancy occurs on inauguration day.
But, because of a coincidence of timing, the terms of three of the seven sitting justices are expected to expire at the same time as the term of the next governor. As a result, the proposed amendment effectively allows the governor elected in 2014 to stack the court as one of the final acts of his four-year term -- potentially leaving a legacy that could last generations.
"Good governance transcends any personality or ideology,'' said Lee, who is a supporter of Gov. Rick Scott. "If we try to do this in 2016, there will be a whole lot of discussion about who this benefits and who this doeen't. I think this is the purest time to deal with it."
But who wins the election in November may determine when the justices decide to retire. If the justices agree with the judicial philosophy of the sitting governor, they could retire early, and give the governor clear authority to appoint their successors. If they disagree with the governor's philosophy, they could wait until the end of the next governor's term and leave open the door for a successor governor to pick the replacement.
Florida law allows a governor to appoint the majority of the members the judicial nominating commissions and the commission then sends the governor a slate of names -- from three to six -- to select an appointee to the court. The question at stake, however, is which governor will get the pick when the three justices retire.
Former Gov. Jeb Bush argued it was the incoming governor, when he threatened to challenge outgoing Gov. Lawton Chiles' appointment to the Supreme Court in 1998. They instead decided to resolve the issue by making a joint appointment of Justice Peggy Quince, the first black female justices in the court.
Now Quince, as well as Justices Barbara Pariente and R. Fred Lewis, all face mandatory retirement when their terms end on Jan. 8, 2019 -- the same day the term ends for the governor elected November 2014.
If Lee's proposal (SJR 1188) is placed on the ballot and approved by voters, the governor in office would have the power to make a "prospective appointment" for a judicial opening that also occurs when his term ends.
Lee argues that the amendment is needed to avoid what he said could be a "constitutional crisis" in which the unsettled law is litigated, casting a cloud over any pending decisions by the state's high court in the aftermath of an election.
Florida law allows a governor to appoint the majority of the members the judicial nominating commissions and the commission then sends the governor a slate of names -- from three to six -- to select his appointee to the court. To clear up an ambiguity, Lee said he has "concluded it is the governor who begins the judicial nominating commission process who should be authorized to make the appointment."
He believes that regardless of who wins the election in 2018, the slate of candidates from the JNC will reflect the judicial philosophy of the incumbent governor anyway so he should have the appointment power. "It's likely to be a slate of nominees whose judicial philosophies are similar to that of the governor and it’s likely to be a slate the governor cannot reject.''
He added: "Where else in our constitution do we suspend the executive authority of our governor because they lose an election or are termed out?"
But Democrats challenged Lee's interpretation of the law.
If there terms of the Supreme Court justices expire at the same time as the governor, "then the person who takes over is the one who has the power to appoint -- because the one who was in prior to that time, their term has ended," said Sen. Arthenia Joyner, a Tampa lawyer and a Democrat.
Joyner asked Lee to postpone a vote until they heard from constitutional scholars about when the vacancy occurs but Lee said no.
"This is maybe inconvenient, but it's settled law,'' said Lee, who is a home builder by trade. "If we don’t’ fix, we could be headed for a boatload of litigation with a Supreme Court that has a cloud cast over it."
Sen. John Thrasher, a St. Augustine Republican who is also a lawyer and a Scott supporter, said the disagreement underscores the need for the amendment.
The bill has one more hearing by the Senate Rules Committee before being voted on by the full Senate.