Divided Supreme Court Signs Off On Process to Replace Three Justices

The Florida Supreme Court on Friday declined to order the reopening of an application process for three upcoming vacancies on the court.

In a 4-3 decision, the court held that the Supreme Court Judicial Nominating Commission was acting within its authority to conduct a process that resulted in 59 judges and lawyers applying to replace justices Barbara Pariente, R. Fred Lewis and Peggy Quince. The justices are leaving the court in early January because they have reached a mandatory retirement age.

The Judicial Nominating Commission is scheduled to meet Nov. 27 in Orlando to select nominees for the vacancies. The retiring justices’ six-year terms end on Jan. 8, the day the new governor will take office.

The court majority rejected petitions from the League of Women Voters of Florida and Common Cause that had sought to extend the application deadline and halt the current application process. The petitions were filed after an Oct. 15 court order that said the next governor, almost certain to be Republican Ron DeSantis, has the authority to appoint the new justices rather than outgoing Gov. Rick Scott.

The majority opinion Friday said the state Constitution “requires the JNC to make its nominations no later than 30 days after the occurrence of a vacancy and does not prohibit the JNC from acting before a vacancy occurs.”

“Petitioners have requested that the JNC reopen its application period for the vacancies at issue in this case,” the opinion said. “We recognize that there is no impediment to the JNC reopening its application period.”

Chief Justice Charles Canady and justices Ricky Polston, Jorge Labarga and Alan Lawson supported the majority opinion.

In a concurring opinion, Lawson rejected an argument that the nominating process should not start until the actual vacancies occur — which would be Jan. 8 in this case.

“Since their inception, Florida’s judicial nominating commissions have read this language as creating a deadline by which they must make nominations — and thereby allowing them to make their nominations prior to the date of a vacancy,” Lawson wrote. “That is the most reasonable reading of the language and is consistent with this court’s precedent analyzing similar language.”

In a strongly worded dissent, which was supported by Pariente and Quince, Lewis wrote that the Judicial Nominating Commission should not act until the vacancies occur.

“Instead of faithfully interpreting the language set forth in our Constitution, the majority presents flawed reasoning to support its desired result. Simply put, the Judicial Nominating Commission has no power to act without the occurrence of an actual vacancy, according to the plain language of the Florida Constitution and the JNC’s own rules of procedure,” Lewis wrote. “I will not sit silently while the majority muddles — or disregards — our Constitution and related rules.”

In another dissenting opinion, which was supported by Pariente and Lewis, Quince said that while “the majority’s solution may be a pragmatic one, it is not a constitutional one.”

Quince said the JNC set an original application deadline of Oct. 8 in response to a request from Scott, who has no authority to make the appointments. As a result, she said she would support requiring the nominating commission to reopen the application process through at least Dec. 8.

One of the arguments made by the petitioners for reopening the process was that the current pool of applicants is “woefully thin” on minority and women candidates. The applicants include 11 women, six African-Americans and six Hispanics.

The Supreme Court appointments are attracting extra attention because they could shift the judicial direction of the state’s highest court for decades to come.

Pariente, Lewis and Quince are part of a liberal bloc that also has often included Labarga. The four justices have repeatedly thwarted Scott and the Republican-dominated Legislature since Scott took office in 2011.