Rick Scott Has an Insane Plan to Pack the Florida Supreme Court on His Last Day of Office
While President Donald Trump and Senate Republicans move to stack federal courts with a right-wing majority, Republicans at the state level seek to follow their lead — and no one more so than outgoing GOP Florida Gov. Rick Scott.
As Mark Joseph Stern of Slate reports, Scott gave an order to the state judicial nominating committee on Tuesday to go forward with a ridiculous — and horrifying — scheme to seize control of the state supreme court on his way out of office:
To carry out this scheme, Scott has seized upon language in the Florida Constitution which, he asserts, gives him to power to make "midnight appointments" (as one Scott ally has described them). 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. Scott announced this plan when he appointed his first justice in 2016, declaring: "I will appoint three more justices on the morning I finish my term."
As Stern notes, the Florida Supreme Court itself could block this scheme, but previously declined to do so last December, stating that there was no case until Scott actually started moving forward. Now that Scott is ordering the nominating committee to start work, they may reconsider, but it is not at all guaranteed.
Obviously, the issue will be moot if the GOP candidate, pro-Trump Rep. Ron DeSantis, wins. But if the Democratic candidate, progressive Tallahassee Mayor Andrew Gillum, wins, he will be deprived of his legitimate right to nominate three justices, and his administration will be hamstrung by a far-right court.
And the consequences could be huge. The Florida Supreme Court currently is balanced between 4 GOP-appointed justices, 2 Democratic-appointed justices, and 1 justice jointly appointed by Democratic Gov. Lawton Chiles and then-incoming Gov. Jeb Bush. Despite this conservative lean, the court has ruled against Republicans on significant issues including gerrymandering. Scott's plan would take the court to 7-0 GOP — and almost certainly give the Republican legislature, and future Republican governors, a blank check to consolidate power and enact an unfettered agenda for years.
In the event that Scott wins his Senate race against Democratic incumbent Bill Nelson, he will actually have to resign from office five days before the justices retire to be sworn in. But in that scenario, Lt. Gov. Carlos LopÃ©z-Cantera would serve out Scott's remaining five days in office and would presumably carry out Scott's judicial scheme for him.
If Gillum wins, he could theoretically circumvent Scott's scheme by taking the oath of office at midnight. But as Stern notes, if Scott refuses to recognize the swearing in, that could lead to a constitutional crisis where two men both claim to be governor and both try to make judicial appointments — a showdown that would have to be resolved by the state supreme court itself, and potentially by the very same three justices Scott asserts are no longer justices.
The bottom line is that if Democrats win Florida's major statewide contests, their troubles are not over, and the battle for control of the state government will continue — thanks to Rick Scott.