The speaker of the Florida House introduced a proposal in 2011 that would have effectively kicked three justices off the state supreme court — and allowed Gov. Rick Scott (R) to appoint three new justices. The three departing justices, who would have been transferred to a new criminal high court, were the only justices appointed by Democratic governors. This effort to turn the court “into a sock puppet for Rick Scott” went nowhere, but Republicans are trying again.
A state senator recently introduced a new court-packing plan, a constitutional amendment to give Scott the power to “make prospective appointments to the bench even if a vacancy occurs the day the governor is leaving office.” According to the Tampa Bay Times:
Under the proposal by Sen. Tom Lee, R-Brandon, the next governor could appoint the successors to three justices who would have to retire on the same day the governor’s term ends, on Jan. 8, 2019. Justices are required to retire at age 70, but can continue to serve on the bench until the end of their six-year term.
Justices R. Fred Lewis, Barbara Pariente and Peggy Quince — the court’s liberal wing — will all turn 70 during the next governor’s term, and their six-year terms will all end on the same day as the new governor is inaugurated….
If voters approve Lee’s amendment in November, Gov. Rick Scott, if re-elected, or his successor will have the power to appoint a majority of the seven-member court, a legacy that could last for decades.
The Florida Republican Party also ran an unprecedented opposition campaign against the three justices during the 2012 election. (The justices are selected by the governor and a merit selection commission, and voters then decide whether to retain the justices in retention elections.)
The GOP’s 2012 attack ads cited some rulings in criminal cases, but as Ian Millhiser noted, the party was likely “far more concerned with giving control of the state supreme court to Rick Scott than they are with eight year old death penalty cases.” The court had ruled against the Scott administration in several high-profile cases. A 2010 ruling to strike down an unconstitutional referendum to “nullify” the Affordable Care Act rankled state Republicans.
The sponsor of the new court-packing plan claims it would clarify a murky constitutional issue regarding judicial appointments. But the GOP may be looking toward 2017, when Florida officials will choose a “revision commission” to review its state constitution, a process mandated by the constitution every 20 years. In 1998, eight of the commission’s nine proposed amendments were approved by voters.
If the new court-packing plan succeeds and the GOP maintains control of the legislative and executive branches, then every member of the 2017 commission will be chosen by Scott, the Republican legislature, or a justice appointed by Scott. No one knows, of course, what this commission will look like or what it will recommend.
The 1997–1998 commission allowed municipalities to close the “gun show” loophole, but the new commission could try to make gun violence prevention laws unconstitutional through an extremely broad right to bear arms, or it could recommend enshrining Stand Your Ground in the constitution. Conservatives have twice proposed a repeal of a constitutional prohibition on school voucher money going to religious schools. It was rejected by voters both times, but the commission could ask again. In 1998, the process also resulted in changes to the process of selecting judges, and Scott has made it clear that he does not like choosing supreme court justices from a list of qualified applicants chosen by an independent merit selection commission.