A controversial constitutional amendment that would require departing governors to fill Supreme Court vacancies on the way out of office is headed to the full Senate after the Rules Committee approved the measure Thursday on a party-line vote.
The proposed resolution (SJR 1188) was approved on a 10-5 vote, with Republicans saying the measure would avoid a possible showdown over the powers of outgoing governors and Democrats saying it moves in the wrong direction.
But hovering over the discussion were questions about what effect the legislation might have if voters approve it in November, amid a heated campaign between Gov. Rick Scott and one of his Democratic opponents, likely either former Gov. Charlie Crist or former Senate Minority Leader Nan Rich.
Because of the number of justices who are set to hit the mandatory requirement age before their terms expire in 2019, the amendment would give the winner of the 2014 election the right to appoint three justices and potentially alter the court’s ideological balance. In recent years, a left-leaning majority on the court has thwarted Republicans who control the rest of state government.
The measure would also affect appointments to the district courts of appeal.
Even critics acknowledge that there is ambiguity about who should make some appointments under the Constitution. The issue centers on the end of judges’ terms that coincide with the end of a governor’s term. That potentially could lead to a conflict about whether an outgoing governor or an incoming governor has the right to make appointments.
Sen. Tom Lee, a Brandon Republican sponsoring the amendment, raised the specter of “massive litigation” and “a cloud hanging over the Florida Supreme Court” if the problem isn’t fixed. Lee also said that politics did not prompt the amendment, though he admitted lawmakers were bound to look at the measure with an eye on the November elections.
“But imagine where we will be in 2016, which will be our next opportunity to fix this, when we know exactly who the governor will be at that time,” he said. “Imagine where we will be politically if we don’t do this now.”
Democrats countered that the amendment would “disenfranchise” voters by allowing a governor to appoint Supreme Court justices after being defeated for re-election.
“We should do something,” said Senate Minority Leader Chris Smith, D-Fort Lauderdale. “I’d just like us to move forward instead of backwards.”
Sen. Garrett Richter, R-Naples, brushed that off moments later.
“The governor that’s going out was elected by the voters,” he replied.
The charged argument, to some extent, echoed a debate in 2011, when then-House Speaker Dean Cannon tried to push through an amendment that would have split the Supreme Court into separate branches to consider criminal and civil cases. But that amendment died when a bipartisan group of senators opposed it.
If Republican legislative leaders can hold together their caucuses, they would have enough votes to put the measure on the November ballot. But the bill still doesn’t have a counterpart in the House.
The amendment would also have to gain the support of 60 percent of voters in the November election to take effect.