When the sun goes down Jan. 7, 2019, Florida’s governor will be Rick Scott, and Barbara Pariente, Peggy Quince and R. Fred Lewis will almost certainly be justices on the state Supreme Court.
When the sun comes up Jan. 9, all four will be out of office. Scott, who is term-limited, will have handed off his duties to Florida’s next governor — whoever that may be. The three justices’ terms will be over as well, and all three are past the mandatory retirement age.
But what happens on Jan. 8? Scott says he intends to fill those three vacancies on his way out the door. A coalition of citizen groups headed by Florida’s League of Women Voters says he doesn’t have that authority — a position seemingly validated by voters, who rejected a constitutional amendment three years ago that would have clearly put the decision in Scott’s hands.
That sets up the rarest of rare circumstances in Tallahassee: an honest-to-goodness constitutional showdown. There’s one more plot twist. Pariente, Quince and Lewis — usually identified as the most liberal members of the court — are being asked, along with the court’s four other justices, to decide who gets to fill the vacancies they will leave.
The situation is fraught with the potential for political rancor, but it doesn’t have to be that way. The last time this happened, outgoing Gov. Lawton Chiles, a Democrat, and his successor, Republican Jeb Bush, struck a truly statesmanlike deal to fill the vacancy, agreeing on Quince. In today’s hyperpartisan atmosphere, that seems unlikely — even if Scott’s successor is a Republican.
The League-fronted group nailed the first part of the solution in a petition it filed with the Supreme Court last week: This decision needs to be made soon, before the field really shapes up for the 2018 gubernatorial race. As it approaches and front-runners emerge, discord and drama will mount.
The second is for Scott to acknowledge that the current Supreme Court can be trusted to render a fair decision. With four justices appointed by Republicans (including Scott’s well-received recent pick, Justice Alan Lawson) and three by Democrats, the court is balanced, and justices have shown a pattern of open, thoughtful deliberation and unanimity that should bolster the confidence of the governor — and Floridians.
Scott should also prepare for the likelihood that he will not prevail. His strongest argument is that the three pending vacancies will leave the seven-member Supreme Court one justice short of the required five-judge quorum. But there’s a fix for that: By the time Jan. 8, 2019 rolls around, Scott’s successor will have been waiting in the wings for two months, and there’s no reason he or she couldn’t be ready to name replacements as a first official act following the inauguration. Even if that successor isn’t ready to pick new justices, it’s not uncommon for retiring justices to stick around for awhile to close out any pending decisions.
From a public policy standpoint, it makes sense for vacancies to be filled by someone voters can hold accountable. On Jan. 8, Scott will undeniably be a lame duck.
In short, this is only a crisis if Scott forces it to be. He should support the League’s call for a swift resolution, make his best case to the Supreme Court — then abide by its decision.
This editorial originally was published by the Daytona Beach News-Journal.