National Pulse

Quirk in Florida law sets up political showdown over upcoming high court appointments

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‘Politicians in Robes’

Despite or perhaps because of this, the Florida Supreme Court originally sidestepped the issue. With the new petition—this time triggered by Scott’s official actions—it may not be able to do that. If it does, and the new governor can’t come to an agreement with Scott, the matter is likely headed back to court.

John Mills, who represented the League in its petition, believes if Republican candidate Ron DeSantis wins the governorship, the two men might well come to an agreement on nominees. (The governor’s office did not respond to repeated requests for comment.)

If Democrat Andrew Gillum—a progressive endorsed by Sen. Bernie Sanders—wins, neither Mills nor D’Alemberte would expect a compromise. Gillum would have to choose from the candidates put forward by the judicial nominating commission, which is full of Scott appointees. There are ways for him to change that, but they’re largely untested, and the issue could easily wind up back in court.

Over the summer, Mills believed Scott wouldn’t make the appointments, as that would directly contradict the position his attorneys took in court. By October, he’d changed his mind.

“I think we are now forced to assume that Gov. Scott will purport to make the appointments before he leaves office,” says Mills, of the Mills Firm in Tallahassee.

Mills believes the law is pretty clear that the new governor makes the appointments; the Florida Supreme Court held unanimously in 2006 that a vacancy doesn’t normally exist until the retiring justice’s term ends. The high court may rule that way again on the current petition.

Potentially more interesting is what happens if the Florida Supreme Court gets the case after Jan. 7. The court would be missing three justices and therefore wouldn’t have a quorum. In the absence of new appointments everyone agrees are valid, Mills says the chief justice could ask the retiring justices to stay on as senior justices, or bring on judges from the appeals courts. But even with a full court, it’s possible that someone will move to disqualify the remaining justices—who, after all, would essentially be choosing their own colleagues.

“Would all seven of them have to recuse?” Mills asks. “If there’s any litigation over it, it’s going to be terrible.”

This sort of thing, Keith says, is why hyperpoliticization isn’t good for the courts. Though he thinks some amount of political input is inevitable and even appropriate, he says politicization can destroy public confidence in court decisions. If the public sees judges as “just another group of politicians in robes,” as he puts it, people may not trust court decisions—and state officials may feel freer to ignore them.

For another, Keith says there’s research showing that judges change their behavior during election or reappointment years. Presumably, they’re worried that light sentences or unpopular decisions could be used to unseat them.

That’s not hypothetical. In 2010, voters declined to retain three Iowa Supreme Court justices who had been targeted because of their votes to legalize same-sex marriage. In 2016, four Kansas Supreme Court justices retained their seats after an effort by conservative groups to unseat them, largely based on their votes to overturn high-profile death sentences. 

And that creates the wrong incentives, Keith says. “Judges need to be comfortable deciding cases based on the law and the facts, not based on how far away an election is.” 


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