Rick Scott Just Fixin' To Pack Florida Supreme Court On Way Out The Door

Wants to plant some Horcruxes in the judiciary.

After fighting Medicaid expansion (and killing some people in the process) and being the NRA's bestest pal for most of his career as governor (with a small, politically convenient exception following Parkland, but no other mass shootings), Rick Scott is looking to bequeath one last political legacy to the people of Florida: He plans to pack the state's supreme court with rightwing members on his last day in office, making use of what he hopes is a loophole in Florida law.

Slate explains the quirk of Florida law that could help Scott get away with it, maybe:  

Under the state constitution, a new governor's term begins "on the first Tuesday after the first Monday in January." Meanwhile, a retiring justice's term ends "on the first Tuesday after the first Monday in January." Due to mandatory age limits, three justices—all left-leaning—face mandatory retirement on this date. The question is when, precisely, their retirement takes effect.

Scott insists that the justices' terms expire at the stroke of midnight on Jan. 8, but that his own term does not end until his successor is sworn in on that day, typically at noon. Thus, he believes he will have about 12 hours to name three new justices, shifting the court to the right for a generation.

In fact, Scott even announced his plan to take advantage of that uncertainty long in advance: When he appointed a supreme court justice in 2016, he pledged, "I will appoint three more justices on the morning I finish my term."

As it happens, your good-government types were paying attention, and the League of Women Voters and Common Cause sued to get the Florida Supremes to rule that the incoming governor would be responsible for any new appointments. The petition noted that Florida voters had rejected a constitutional amendment that would have explicitly allowed such last-morning-in office appointments for outgoing governors, and cited a buttload of cases where Florida courts have held that the expiration of contracts and laws and legislative statements is actually at midnight of the final full day, meaning the termed-out Supremes shouldn't actually be forced into retirement until 12: 00 am of January 9, by which time the winner of this year's gubernatorial election will be sworn in. Makes sense to us!

The state Supreme Court, however, dismissed the lawsuit last year, because 

"the issue presented is not ripe for consideration." Then, in a rather cryptic passage, it clarified that it could not resolve the dispute "until some action is taken by the Governor" to fill the three seats. This caveat left open the possibility that the court might reconsider the matter once Scott takes some concrete "action" to replace the retiring justices.

And wouldn't you know it, Scott took some "action" on the matter this week, ordering the state's Judicial Nominating Commission, which of course is full of Scott appointees, to get to work on a list of possible appointees, to be ready within 60 days. Get ready for more lawsuits any moment now.

Ever the gentleman, Scott says he'll let the winner of the election weigh in on who should be appointed to replace the three Democratic-leaning justices -- if the election goes to Ron DeSantis, they'll probably see eye to eye on nominees who could send the court skittering rightward. If Democrat Andrew Gillum wins, though, don't expect him and Scott to sing Kumbayah and agree on any of the folks picked by the Scott allies on the naming commission.

Why, yes, this could all get weirder. If Scott somehow wins his race for the US Senate, then he'd have to resign as governor so he could be sworn in on January 3 in Washington DC, leaving any Supreme appointments to his replacement, Lt. Gov. Carlos López-Cantera, who would obviously have a huge mandate and no one would question the legitimacy of THAT.

But wait! The weirdness goes deeper, because what part of "FLORIDA" did you not see coming? How about a good ol' constitutional crisis, since the text of Florida's statute -- which is ambiguous about when exactly those supreme court justice terms end -- is actually quite clear on when the incoming governor's term begins:  at 12: 00 AM on the "first Tuesday after the first Monday in January, even though incoming governors have traditionally been sworn in at noon that day. The law doesn't actually mention anything about a swearing-in being the legally binding start of a new governor's term.

Because of that, a number of Florida governors have chosen to be sworn in privately at midnight, then again at the public inauguration at noon, to prevent precisely the kind of last-minute fuckery by an outgoing governor that Rick Scott is planning. If you have a few minutes, go read this hilarious 1991 Orlando Sentinel piece on what you'd have to call Florida'srollickinghistory of fucktussles over the appointment powers of incoming and outgoing governors. It's perfectly possible that if Gillum wins, he'll have a judge (although a notary would do ) swear him in at midnight on January 8 and then dare Scott to call himself "Governor" anymore. Then you just know Scott would insist on making the appointments anyway (we'd have said "or López-Cantera," but we want good karma for Bill Nelson's reelection and Rick Scott's departure to fucking people over as a lobbyist).

It's the sort of issue you might suppose has been a source of political fuckery often enough that the legislature or the court would have settled when terms definitely begin and end for state offices. Crom knows it's been a century since Gov. Sidney J. Catts took a gun to his own swearing in in 1917 so he could prevent any interlopers from interfering. (Catts also worried the Pope might try to sponsor a coup against him -- oh, those delightful days of the Second Klan!)

Now that Scott has "taken action," look for a new lawsuit about all this -- and in pure Florida fashion, it'll be decided by the three retiring Judges Scott wants to replace. We can hardly wait for the Carl Hiaasen novel that results.

[ Slate / Miami Herald / Orlando Sentinel ]

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