Rick Scott's Supreme Court candidates sell themselves with adjectives: 'originalist,' 'conservative'

Gov. Rick Scott's goal of reshaping the Florida Supreme Court drew closer Monday as the nominating commission controlled by the governor interviewed 11 candidates for his first appointment and each made a point of offering up their conservative credentials.

The candidates to replace Justice James E.C. Perry, one of two blacks on the high court, were six women and five men and all are white. Perry, 71, is retiring from the seven-member bench on Dec. 30 because he has passed the state's mandatory retirement age of 70 for judges. The JNC will narrow the list to six and submit them to Scott in the next few days.

The appointment of a conservative to the seven-member bench will allow the governor to add another justice to the court's conservative minority, now comprised of Justices Charles Canady and Ricky Polston. This would be Scott’s first appointment to the high court.

A former circuit court judge in Seminole County and graduate of Columbia Law School, Perry was appointed in 2009 by then-Gov. Charlie Crist. He has frequently joined with the moderate members of the court's majority in several cases that have invalidated laws passed by the Republican-led Legislature and the Republican governor.

Seminole County Circuit Judge Michael Joseph Rudisill echoed the sentiments of many of the candidates when he vowed: “I will bring to the bench a core set of conservative principles,” he said. “I've got a lot of friends in the Legislature or formerly in the Legislature” and “I know politics.”

Alice Blackwell, a circuit judge in the 9th Judicial Circuit in Orlando, told the panel: “I'm conservative in my approach … I'm not an activist judge.” When asked to explain herself, Blackwell said, “to me, that means figuring out what do the words mean that are in the law.”

Sandy D'Alemberte, former dean of the Florida State University School of Law, said he hoped the nominees sent to the governor would not be selected based on judicial ideology but merit and integrity.

“I hope we don't get people who want to portray themselves with some partisan extremist ideal,” D’Alemberte said. “Even people who come up through this appointment process are capable of having integrity”

Among the defeats the court has handed Scott and the Legislature is the landmark ruling that threw out the state's congressional and state Senate redistricting plans, the Legislature's rewrite of the death penalty statute, and a ruling this summer that invalidated the Legislature's rewrite of the state's workers compensation system.

In more than six hours of interviews, the nine members of the Judicial Nominations Commission focused on probing the candidates’ willingness to overturn previous court rulings.

They frequently asked the candidates about their approach to ruling on a legal doctrine known as stare decisis, the principle that the court adheres to the precedent set in earlier cases, and they consistently referred to themselves as “originalists,’’ embracing the legal doctrine adhered to by the late U.S. Supreme Court Justice Antonin Scalia, which sought to interpret the Constitution as it was understood at the time of its adoption.

“Would you ever follow a precedent that you thought was wrongly decided?” asked Dan Nordby of the Shutts & Bowen law firm in Tallahassee, to several candidates. Nordby represented the Republican Party of Florida and was on the losing side of the Supreme Court's rulings on the Fair Districts lawsuits over redistricting.

Wendy Berger, a 5th District Court of Appeal judge told the group: “There's a time when you can throw stare decisis aside if it's wrong” but added that she would look at it “on a case-by-case basis.”

Brad King, state attorney for the 5th Judicial Circuit, said that as a prosecutor who has advocated for the death sentence in 38 pending cases, he would have to remove himself from ruling on any capital case that came from his circuit and is before the Supreme Court.

King was among the state prosecutors who urged the Legislature to reject calls to change Florida’s law and impose a unanimous jury verdict in death sentencing cases in response to U.S. Supreme Court rulings this year. He recommended lawmakers switch to a 10-2 jury recommendation before the death sentence can be imposed. The Florida high court rejected that law, forcing all death cases to be put on hold unless the Legislature rewrites the law again.

Two of the candidates, C. Alan Lawson and Daniel J. Gerber, were nominated when Perry was first selected. Lawson, chief judge of the 5th District Court of Appeal in Daytona Beach, described his judicial approach as “originalist.”

Jesse Panuccio, Scott's former general counsel and a member of the JNC, asked Lawson what happens when “originalism bumps up against stare decisis” precedent?

Lawson suggested that legal precedent should be maintained when “society has built up an expectation” and the ruling could do economic damage. He also added the Legislature can change the law if they don't like the ruling.

Gerber, of the Orlando office of the law firm Rumberger, Kirk and Caldwell, touted that he once worked in Washington, with conservative former Florida Congressman Bill McCollum, R-Sanford.

State Rep. Larry Metz, a Yalaha Republican, ended his JNC interview by telling the group that he had recently been diagnosed with Parkinson's disease. “I don't think it changes anything and it's not tempering my desire to serve,” he said.

Several candidates stressed their trial court experience, noting that with Perry’s retirement the only remaining justice with trial court experience is Chief Justice Jorge Labarga.

“They're asked to pass judgment on procedural trial court error,” Berger said. “If you want to call balls and strikes, you ought to play the game”

This story was originally published November 28, 2016 at 8:47 PM with the headline "Rick Scott's Supreme Court candidates sell themselves with adjectives: 'originalist,' 'conservative'."