By Noreen Marcus, FloridaBulldog.org
Gov. Rick Scott may not get a chance to stack the Florida Supreme Court, after all.
Conservative Scott and the three liberal-leaning justices he’d like to replace have at least one thing in common: They all must vacate their offices on Jan. 8, 2019.
Justices Barbara Pariente, Peggy Quince and Fred Lewis are required by law to retire because they’re already 70 or turning 70 this year. Scott is finishing his second and final term.
Scott wants to revamp the court on his way out the door by naming their replacements, rather than leaving the choices to his successor. And if he’s able to do that, he’s widely expected to pick conservatives who will tilt the court rightward for the foreseeable future.
He may not get the chance. The League of Women Voters of Florida is pursuing in the Florida Supreme Court a potent challenge to his power to reshape the court in his own image.
With a kick-the-can ruling in the lawsuit that the League filed last year, the court seemed to step out of Scott’s way. Lewis wrote an angry dissent accusing the majority of inviting “a constitutional crisis and calamitous result” before they’ll take action. Pariente and Quince did not go there.
Power to incoming governor?
Yet former appellate judge Philip Padovano said he expects the court will eventually side with the League because a previous opinion in a similar case says it should. According to that opinion, the power to appoint justices “belongs to the incoming governor, not the outgoing governor,” Padovano said.
On Dec. 14 the court decided that since Scott hadn’t done anything except talk about making his picks, there was nothing to rule on and the case wasn’t ready for review. This will change when Scott convenes the commission that screens Supreme Court nominees, Padovano said.
“The minute he does that, the League of Women Voters’ lawyer is going to go back to court and say, ‘We’re back and this thing is in play now,’” Padovano said. After 19 years on the First District Court of Appeal in Tallahassee, he is in private practice with the law firm Brannock & Humphries in Tampa.
League president Pamela Goodman agreed. “Timing is everything, and while we were disappointed with the original decision, we realized that wasn’t the end of the story and there would be an appropriate time for us to come back at it,” she said. “And if that occurs we would request our legal counsel to move into action.”
Another possible roadblock for Scott is political. His base would appreciate his following through on replacing the three liberal justices with conservatives. However, facing a tough race against incumbent Democratic Sen. Bill Nelson, Scott might decide he’d be better off letting the next governor choose the three justices, an observer said.
“Because Scott is likely to run for the Senate, you assume that he has bigger fish to fry and he wouldn’t want to do anything that could become a distraction for his campaign,” said Robert Jarvis, a law professor at Nova Southeastern University. The all-important independent voters “may not like that court-packing headline,” he added.
Timing could help decide
Plus, an election and timing could decide the issue. If Scott wins the Senate seat, he’ll be sworn in on Jan. 3, 2019. The Supreme Court vacancies do not officially occur until Jan. 8, the day the three justices retire and Scott leaves the governor’s office. Because of the five-day gap, new Sen. Scott would no longer be in a position to name any replacements.
Scott’s general counsel Daniel Nordby, his lead attorney in the League of Women Voters case, could not be reached for comment.
Politics and the strained relationship between the Scott administration and the Florida Supreme Court seem to play a role in the court-stacking case. The Republican-dominated Legislature went apoplectic over the court’s selection in 2015 of a League of Women Voters redistricting map to replace the gerrymandered version crafted by GOP operatives.
“This case does not pit this Court versus the Legislature,” Pariente wrote hopefully for the court majority that selected the new map in time for the 2016 election. The Republicans triumphed, but Pariente has remained a target of their ire.
In the court-stacking case, Scott even took the unusual step of asking for Pariente to step down. His lawyers said she demonstrated bias against him during a post-hearing chat with Chief Justice Jorge Labarga on Nov. 1.
A ‘hot mic’
A “hot mic” caught Pariente referring to what turned out to be a list of Scott’s appointees to the Florida Supreme Court Judicial Nominating Commission. Labarga spoke a name on the list and Pariente allegedly commented “crazy” (the sound quality of the Florida Channel audio was poor). Then Labarga spoke another name and said, “He’ll listen to me.”
Separately, during her 2012 retention campaign Pariente urged voters to prevent Scott from replacing her and other judges through “partisan political appointments,” according to a recusal motion filed by Scott’s attorneys.
“Under these circumstances, disqualification is appropriate because a reasonably prudent person would question Justice Pariente’s impartiality toward the Governor and her ability to render a fair, impartial, and unbiased judgment in this case,” the motion said.
Thomas Hall quoted Gertrude Stein in his response for the League of Women Voters. “As titillating as a tale may first appear when it starts with judges being inadvertently caught on a ‘hot mic’ while chatting between oral arguments, it is now beyond clear that ‘there is no there there’ in this case,” wrote Hall, of The Mills Firm in Tallahassee.
The day after Hall filed the League’s response, the Supreme Court spurned Scott’s recusal motion with an unsigned one-liner.
The court’s reticence to tackle the issue of Scott’s end-of-term power to make judicial appointments could be interpreted as a political gesture. Perhaps the justices went out of their way to show they’re willing to let Scott win once in a while to prove they’re unbiased.
But politics doesn’t dictate anything they do, Padovano insisted. “I know them all,” he said. “If Justice Pariente thought the right thing to do would be to [rule against Scott] and she was thinking this would look awful, she would do it anyway, regardless of how it looked, because it was the right thing to do. That’s how much confidence I have in her,” he said.
No one can really predict what the court will do in this case, said Joseph Little, an eminent constitutional scholar at the University of Florida. He said the League has the stronger position, “but I’m always befuddled by what courts can do, and sometimes do do. So I never say anything’s a locked conclusion.”