The Florida Supreme Court heard arguments Wednesday in a case that will likely determine whether Gov. Rick Scott, or his successor, will have the power to appoint as many as three new justices in January 2019.
Justices Barbara Pariente, R. Fred Lewis and Peggy Quince will have to leave the court at that time because of a mandatory retirement age.
The controversy hinges on whether Scott has the authority to appoint their replacements, as he has said he plans to do, before he leaves office.
Scott’s final term in office will end at the same time as the terms of the three retiring justices, who are part of what is widely considered a liberal bloc, which now holds a slim 4-3 majority on the Court.
The group has thwarted Scott and the Republican-dominated Legislature on numerous occasions since the governor took office in 2011.
Whoever has control over their replacements will shape the balance of the court for years, if not decades, to come.
Scott’s general counsel, Daniel Nordby said Scott’s term may last longer than those of the outgoing justices.
“As to judicial terms for a justice who is not retained, those offices are vacant. A vacancy exists at the conclusion of the term. But, a governor continues in office until his successor qualifies,” said Nordby.
“We don’t know when Governor Scott’s successor will qualify. It may be likely that his successor pre-files the Oath of Office and has a commission issued, but we don’t know that for certain,” he said.
But the League of Women Voters of Florida and Common Cause, who filed the lawsuit in June, contend that Scott’s successor holds the privilege of naming three new justices.
The League’s attorney, John Mills, said the court could face a crisis if the justices wait until after the appointments are made to deal with the issue. That’s because any potential legal challenge filed after the new appointments are on the bench would require three of the justices to recuse themselves, leaving the court without the five-member quorum required to rule on cases.
“This has been a problem that we have had for decades. It has been resolved with backroom deals between incoming and outgoing governors. Our clients don’t believe that is how it should be resolved. The electorate should know what is at stake,” said Mills.
The Court has given no time table as to when a ruling will be made in the case.
