Robert Jarvis, left, and Philip Padovano, right. (Courtesy photos)
There was a time when a politician was mocked for trying to reshape a court to his liking. In 1937, President Franklin D. Roosevelt’s court-packing plot to expand the U.S. Supreme Court and add New Deal loyalists went nowhere.
That was then.
Gov. Rick Scott, who recently installed conservative Justice Alan Lawson as his first selection for the Florida Supreme Court, is already looking forward to naming three matching justices on his way out of office. Call it a parting gift or a parting shot.
Scott announced in November that he will replace moderate-to-liberal Justices Barbara Pariente, R. Fred Lewis and Peggy Quince on the morning of Jan. 8, 2019. The terms of the governor and the justices end at “exactly the same time,” according to Florida Supreme Court spokesman Craig Waters. A new governor will be inaugurated the same day.
If Scott executes his plan, the court will be solidly conservative until at least 2025 when two right-leaning stalwarts, Justices Ricky Polston and Charles Canady, must retire. Scott’s last-minute appointments would likely be more acceptable to a Republican successor than to a Democrat.
For the moment, court watchers are wondering if Scott can legally wrest from the next governor — whoever it may be — the power to shape the state’s leading court for many years to come. Is he preparing to manipulate the timing so he can claim a conservative court system as part of his legacy?
William Spicola, the governor’s general counsel, did not respond to a request for comment by deadline.
Philip Padovano, a former First District Court of Appeal judge who has argued a similar issue before the high court, is adamant that Scott may not reach back to install his preferred judges.
“He won’t make the pick. They may think that’s the case, but it’s not the case,” said Padovano, now with Brannock & Humphries in Tampa.
Advice And Vox Populi
Padovano cites a 2006 advisory opinion to then-Gov. Jeb Bush as support for his position. First District Court of Appeal Judge Richard Ervin was scheduled to retire on Jan. 1, 2007, the day before Bush would hand over his office to Charlie Crist.
Bush asked the court to define “vacancy” in the context of triggering the appointment process. Was it created when Ervin submitted his resignation, or when he left the bench? The court chose the second definition.
“They wrote that appointment belongs to the incoming, not the outgoing, governor,” Padovano said.
Joseph Little agreed. “I think the advisory opinion pretty much controls the matter,” said Little, an emeritus professor at the University of Florida’s Levin College of Law.
Scott is contemplating a second run at exerting ex post facto executive authority over the court. The first didn’t go very well.
The Legislature put a constitutional amendment on the 2014 ballot that would have allowed outgoing governors to replace appellate judges who leave the bench at the same time the governor’s term ends — exactly what will happen in 2019. Fifty-two percent of voters rejected the amendment.
“Critics called it a court-packing scheme that would have ensured a judicial backstop to a possible Crist takeover of the governor’s mansion,” Florida Watchdog wrote after the 2014 election that Crist narrowly lost to Scott.
The law may be clear to scholars and even express the will of the electorate. But as a practical matter, it can bend to divergent views of the power of lame-duck chief executives. Witness the unspooling of President Barack Obama’s nomination of Chief D.C. Circuit Judge Merrick Garland to the U.S. Supreme Court.
“This is exactly the same issue: Who gets to appoint a judge to an open seat when you’re a lame duck?” Robert Jarvis asked, referring to Scott and the Florida Supreme Court. The professor at Nova Southeastern University’s Shepard Broad College of Law suggested the answer should come from constitutional law, but it doesn’t.
“It’s a failure of our Constitution, just like the U.S. Constitution, to make it clear who makes the appointments” during the limbo period before a leadership change, which was stretched by the Republican Congress to nearly a year for Obama.
“Most people would think it would be the governor or a president sitting at the time the vacancy occurs, but we have become such a polarized nation and state that it’s open to all sorts of shenanigans,” Jarvis said. “I have no doubt that Scott will try to do this and probably get away with it.”
The aftermath will be tricky if the next governor is a Democrat. Litigation is sure to follow.
Then the question becomes who has standing to sue?
Little said he believes the new governor would be the proper petitioner. The argument would be that Scott usurped his successor’s authority to name judges.
Jarvis would take a multiple-choice approach.
“I’m not troubled by the standing issue,” he said. “You have a taxpayer, you have a voter, you have a legislator, you have somebody from the Judicial Nominating Commission, and you say to the court, ‘I’ve given you four different choices. One of these people has standing.’ “
History shows that the chief executive generally gets his way. Roosevelt, a wily politician, ultimately achieved a favorable U.S. Supreme Court majority.
Padovano predicts the same outcome for Scott, even if he doesn’t personally select the three justices in his final hours as governor. He will leave behind a Judicial Nominating Commission comprised of people he appointed, and their term won’t expire until the following summer.
The commission can send three to six names for each open seat. Lawson’s name was one of only three provided to the governor, and Padovano wonders if this means the field is being narrowed on purpose.
“The nominating commission could essentially box in the new governor,” he said.
Any discussion of the appointment process is sure to reference 1998 when outgoing Gov. Lawton Chiles struck a deal with Bush to choose Quince. “Chiles and Bush were very moderate compared to what we’re used to now,” Little said.
Ironically, Quince may find herself in the middle of a fight over her replacement.
When she was promoted, politicians took pains to avoid disruptive battles over judicial appointments. As former Justice Major Harding, now with Ausley McMullen in Tallahassee, noted wistfully, “In the past, it has always been worked out.”