Florida’s Republican governor, Rick Scott, will not be able to name three new justices to the Florida Supreme Court after his term has ended, that court ruled on Monday. Its decision denies Scott the ability to shift the court rightward for a generation, thwarting his plan to make “midnight appointments.” Instead, it ensures that the next governor will be able to fill those seats. The stakes of the Florida gubernatorial race, in other words, just got even higher: Whoever wins the election will enter office with three vacancies to fill on the state’s highest court.
The dispute over the Florida Supreme Court began in 2016, when Scott unexpectedly declared that he would “appoint three more justices on the morning I finish my term.” Scott was alluding to the fact that three of the court’s seven justices face mandatory retirement due to age limits when their terms end in January. Under the state constitution, their terms expire on Jan. 8, 2019; by tradition, the next governor would be scheduled to be sworn in at noon on that same day. Thus, Scott intended to replace the justices just before his successor took the oath of office.
There are a number of flaws in Scott’s theory, but the biggest problem is that he won’t actually be governor that morning. The Florida Constitution states that a new governor’s term “begin[s] on the first Tuesday after the first Monday in January,” which will be Jan. 8. Most governors have held formal swearing-in ceremonies at noon on that day. But the state constitution doesn’t require it. Rather, it affirms that the new governor’s term begins on that calendar day—that is, at midnight.
Scott, who is now running for Senate, therefore planned to appoint three justices on the morning after his term ended. He wished to exercise an authority he simply wouldn’t have. Last year, the League of Women Voters filed a lawsuit urging the Florida Supreme Court to block this scheme. The court ruled in December that the suit was premature, because Scott had taken no formal action to replace the justices. But last month, the governor directed Florida’s Judicial Nominating Commission to begin accepting and reviewing applications for the court. (The JNC is a nine-member body that nominates three to six candidates for each vacancy, from which the governor selects the new justice.) So the league sued again, arguing that the time had come for the justices to act.
On Monday, the court agreed. It issued an order seeming to bar Scott from replacing the justices at the last minute. The court declared that the “governor who is elected in the November 2018 general election has the sole authority to fill the vacancies,” so long as the retiring justices don’t leave office before their terms expire “at midnight between January 7 and January 8, 2019”—and “provided that the [new] governor takes office immediately upon the beginning of his term.”
This second caveat puts some pressure on Scott’s successor. It allows him to fill the vacancies if he is sworn in at “the beginning of his term,” meaning midnight between Jan. 7 and 8. The court essentially directed the next governor to take the oath immediately on his first day on the job, rather than allow the traditional 12-hour gap for a noon swearing in, during which Scott might attempt some chicanery. That means Florida’s next governor must be sworn in at midnight, though of course he can hold a symbolic ceremony later that day. (It won’t be the first time a Florida governor held a midnight oath to avoid subterfuge: Several past Florida governors have been sworn in at midnight to prevent their predecessors from making last-minute appointments.)
There is essentially nothing Scott can do to get around Monday’s ruling, unless his successor is foolish enough to forgo a midnight oath. (He won’t be.) Any judge or notary public can swear in a governor, so Scott may not instruct his attorney general or secretary of state to refuse to administer the oath. Moreover, the decision is rooted exclusively in state law, so Scott cannot appeal to the U.S. Supreme Court. His grand plan to pack the court has been foiled.
Monday’s decision will not matter much if Republican Ron DeSantis wins in November. The Trump acolyte would appoint the same kind of far-right judges whom Scott favors, rendering this controversy largely pointless. If Democrat Andrew Gillum triumphs, on the other hand, he will obviously wish to name progressive justices to the bench.
Gillum, however, might not be able to tilt the court as far left as he might like. State law requires the governor to pick a name from the list provided by the JNC. During his nearly eight years in office, Scott has made the JNC much more political and installed a number of allies. There is currently a 5–4 split between partisan and impartial commissioners, and the complex voting procedures all but demand at least a few compromise candidates. The JNC won’t offer exclusively conservatives, but it’s unlikely to offer any liberal lions. Gillum will probably have to settle for moderate progressives, which, for Democrats, is no doubt preferable to Scott’s reactionaries.
The Florida Supreme Court’s Monday order did leave open one question: When, exactly, can the JNC certify its nominations? Scott wanted the commission to send names before the justices had left the bench; his opponents believe it can’t act until the vacancies occur. The court allowed the JNC to ignore Scott’s request for nominations and set a hearing on the timing issue for the Thursday after the November election.This question may have little practical importance, other than clarifying the technical matter of when state Supreme Court nominations can commence.
Florida’s 2018 gubernatorial election was always going to be consequential. Now it’s momentous. Among other things, the Florida Supreme Court enforces anti-gerrymandering provisions in the state constitution as well as privacy protections that safeguard the right to abortion access. If DeSantis gets to replace these three justices, he can create a court that rubber-stamps gerrymanders and draconian abortion restrictions. If Gillum fills the vacancies, he can cement his progressive legacy during his first days in office. Only one thing is certain: The man who decides the future of the Florida Supreme Court will not be Rick Scott.
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