By: Keith Thomson, Member-Candidate, J.D. Candidate, May 2020, St. Thomas University School of Law.

Article 5, section 8 of the Florida Constitution states, “No justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served.” What this means in practical terms is that three of Florida’s seven Supreme Court justices will be forced to retire on January 7, 2019. They are three of Florida’s four left-leaning justices, Barbara Pariente, FredLewis, and Peggy Quince, all of whom will be seventy years old by that time. A single man will ultimately decide who replaces them, but the Court, including the three departing justices, and the voters of Florida will likely decide who that man is.

            The Florida Constitution gives the governor of Florida the power to appoint Supreme Court justices. The governor must choose a nominee from a list of three to six persons provided by the Florida Judicial Nominating Commission. The question at the heart of this matter, as well as the heart of a lawsuit filed September 20, against Governor Rick Scott, is who will be governor at the moment the three justices formally retire. The justices will retire on January 7, 2019, while Governor Scott will leave office at midnight on January 8, 2019, the first day there will be vacancies on the Court.

            The first questions to be answered are who will be the outgoing governor and who will be the incoming governor on January 8, 2019. Rick Scott’s success in his senate campaign to replace Bill Nelson means he will have to step down on January 3, 2019. That being the case, Lieutenant Governor Carlos Lopez-Cantera will complete the term. As for the incoming governor, that was to be determined by a closely contested gubernatorial race between progressive democrat Andrew Gillum and conservative Ron DeSantis. The incoming-outgoing question will likely be decided by the current Court in a suit that was recently refiled by the League of Woman Voters after being previously dismissed for not being ripe. Now that Rick Scott has ordered the Judicial Nomination Commission to begin selecting nominees, the case appears to be ripe for judicial review.

            As for the Scott-Cantera question, there seems to be no indication that the now Lieutenant Governor would do anything other than walk in lockstep with the wishes of Governor Scott. Scott has indicated that he will share the responsibility of filling the three vacancies with the incoming governor. It now being Ron DeSantis, the two are likely to agree on justices with a right-leaning judicial philosophy. With Andrew Gillum it could have been problematic due to their vast contrast in political ideology. Furthermore, Rick Scott has largely shaped the Judicial Nominating Commission to his own preference. This means Gillum, with or without Scott’s participation, was always unlikely to have any left-leaning judges to choose from; and current Florida Supreme Court precedent requires the governor to choose from the Commission’s list.

            All this appears to be a problem for liberals in Florida. There is the very real possibility that the Florida Supreme Court will lean right by a six to one margin for a decade or more. To make matters worse, left-leaning Justice Jorge Labarga will be forced to retire in 2022. This raises thepossibility of a 7-0 conservative Court. A consolidation of power in the governor’s office is a dangerous and unintended consequence of the citizens of Florida’s attempt to protect its high court from senility, but what is today’s liberal problem could be tomorrow’s conservative problem.

            It is a problem for all Floridians to have a homogeneous ideology at the top of their judicial branch. To have such a single one-sided philosophy at the top of the branch of government that is the last check and balance on the government of this state is a small step from tyranny and autocracy. In ten or fifteen years, this could be a problem facing conservatives and it would be equally as dangerous.

There was a proposed amendment of the 2018 Florida ballot that not only raised the mandatory retirement age to seventy-five but mandated that judges retire on their seventy-fifth birthday. The proposed amendment would decrease the odds of more than one mandatory retirement at a time. Unfortunately, Amendment Six was a bundled amendment that included a provision to limit the rights of the criminally accused to confront their accusers. The people of Florida should propose a single issue amendment to prevent any one person from having absolute power regardless of his or her political ideology.