By Ashley Lopez
Florida Center for Investigative Reporting
The Florida Senate passed a bill this week that could raise the stakes of this year’s gubernatorial election.
The bill, S.B. 1188, would allow the winner of this year’s election to appoint three new Florida Supreme Court Justices—replacing three of the state high court’s most liberal members.
According to The Florida Current, the bill passed in the Senate along party lines on Thursday, 26-14.
Sen. Tom Lee, R-Brandon, said the amendment would prevent a “constitutional crisis”.
“We can’t deny, we cannot deny – despite all the budding constitutional scholars on the floor today – that we have a problem,” Lee said. “Someone has to be in charge. Someone has to make the decision.”
Florida Supreme Court justices are required to retire when they turn 70, but can serve out the remainder of their six-year term if their 70th birthday falls in the second half of the term. As The Florida Current reported in July, Justices Barbara Pariente, Fred Lewis and Peggy Quince will all turn 70 in the next term and be forced to retire on January 8, 2019, the same day as the end of the winner of the 2014 gubernatorial election’s term.
The power to name the replacements of the three justices places even more importance on the governor’s race this year. If former Gov. Charlie Crist wins back his old job as a Democrat, he would be able to keep the court’s current 5-2 liberal majority on most contentious decisions. If Lee’s constitutional amendment is passed by 60 percent of voters and Gov. Rick Scott is reelected, he would be able to flip the court majority to a conservative balance.
These political ramifications have divided lawmakers strictly among party lines.
The Associated Press reports that Democrats have said the winner of the next election shouldn’t choose three out of the seven justices on the court on their way out of office.
Democrats agreed that the way appointments are handled in cases like this needs to be addressed, but they opposed the bill (SB 1188) because they believe if people elect a governor in November, that governor should be the one to appoint the Supreme Court justices for vacancies that begin on inauguration day two months later.
“It’s not a partisan issue. We don’t know who will be the next governor,” said Sen. Jeremy Ring, D-Margate. “I just believe that the incoming governor should have those appointments.”
Senate Democratic Leader Chris Smith said it’s customary for governors-elect to form a transition office and make decisions that lay the ground for their first day in office, and the Supreme Court appointments should be part of that.
So far, there is no House companion bill moving through the other chamber, but Speaker Will Weatherford has told reporters that he is open to considering a similar bill.
“I do believe it’s something that our body should consider,” said Weatherford, R-Wesley Chapel, according to the AP.
Florida’s Supreme Court has been the subject of a lot of frustration for the GOP in Florida, mostly because right-leaning policy efforts from lawmakers have been ultimately halted by the court.
But this looming mass retirement poses an opportunity for Republicans to change that.
Also, this isn’t the first time state legislators have angled to have a say in how Florida Supreme Court justices are appointed.
In 2012– among a slew of Legislature-pushed ballot amendments—lawmakers unsuccessfully tried to amend the state constitution to require that the state Senate sign off on justice appointments, which experts said would have politicized the state’s highest court. That ballot measure would have also allowed the Legislature to repeal any court decision with only a majority, which is 50 percent plus one. Right now, the legislature needs a supermajority, a vote count that is much harder to achieve.
The state Republican Party also led an effort in 2012 to oust three of the more liberal members of the court. The party, along with right-wing groups funded by the likes of the Koch brothers, tried to get Lewis, Pariente and Quince from the Florida Supreme Court voted out during their merit retention votes. All three justices were appointed by a Democratic governor. Like the ballot measure, though, that merit retention fight failed.