If former Republican Gov. Charlie Crist is elected governor as a Democrat in November, all seven state Supreme Court justices might be his appointments.
If Republican Gov. Rick Scott is re-elected, he could completely reshape the court that has frustrated him and other GOP leaders on issues ranging from medical marijuana to efforts to protect doctors and businesses from lawsuits.
Whichever candidate Floridians elect, they also will decide the direction of the Supreme Court for decades to come. Florida's mandatory retirement age of 70 for Supreme Court justices means four will leave the court by January 2019, and each has often rejected laws created by the Republican-controlled Legislature and executive orders issued by Scott. Any appointees could stay on the court until they turn 70, which could be 20 years or more.
A number of Scott's actions have been found unconstitutional in state and federal courts, including attempts to drug test welfare recipients and state employees; his order to state agencies not to implement rules for regulations established by the Legislature; a prison privatization plan; and an effort to protect developers from lawsuits.
The state's high court has also struck down other Republican priorities implemented before Scott took office, including a school voucher program and lawsuit caps on medical malpractice cases in which the patient dies.
Crist had his own problems with the Supreme Court when he was governor. The court ruled he overstepped his powers by negotiating a gambling compact with the Seminole Indians without getting legislative approval. Crist was also ordered to name a judge to an appeals court after he rejected recommendations from a judicial nominating commission because all potential appointees were white and Crist wanted a more diverse list.
Justice James Perry, who was appointed by Crist in 2009, will retire in 2017. Justices Barbara Pariente, Fred Lewis and Peggy Quince will retire in 2019 on the same day that the governor elected in 2018 takes office. A question on this November's ballot will ask voters to give the sitting governor the right to name their replacements even if he's leaving office.
If the measure fails, the sitting governor might still have a say in the nominees. In 2009, outgoing Democratic Gov. Lawton Chiles appointed Quince and Lewis, but only after getting the approval of Republican Gov.-elect Jeb Bush. Pariente was appointed by Chiles in 1997.
Crist has made the Supreme Court part of his talking points as he campaigns. Scott has not.
"If Rick Scott gets re-elected and appoints ideological wackos to the Supreme Court, it's over," Crist said. "It's over for women, it's over for minorities, it's over for gays, it's over for the environment, it's over for public education. It's all over."
Crist said that the outgoing justices are those who are most compassionate on the bench, and that's the quality he'll look for if he gets a chance to replace them. Besides Perry, Crist also appointed justices Charles Canady, Ricky Polston and Jorge Labarga. Polston and Canady are considered the two most conservative members of the court.
"I wasn't really looking for any ideology, I was looking for compassion," Crist said of his previous appointments. "They needed to be people that had empathy. I wanted to find their heart and soul in the interview process."
It's clear that the Republican Party of Florida wants Scott to change the court's makeup but he hasn't had any openings to fill. It mounted an unsuccessful campaign two years ago to have Pariente, Lewis and Quince voted off the bench, which would have allowed Scott to name their replacements. Justices face a retention vote every six years, when voters decide whether they should remain on the court. None has ever lost.
The Scott campaign did not make the governor available to comment on the issue after several requests for an interview, instead issuing an emailed statement by spokeswoman Jackie Schutz.
Schutz criticized Crist for appointing a lawyer from the Morgan & Morgan law firm to a judicial nominating commission, which makes recommendations to the governor for judicial appointments. Crist took a job with Morgan & Morgan after he left office. The state's ethics commission rejected a complaint over the issue filed by a Republican Party official noting that there was nothing "factual" or "substantive" to support allegations of wrongdoing.
"As we saw at the end of Charlie Crist's last term, he will make decisions on judges and judicial nominating councils according to who can financially help him and his personal injury law firm," Schutz said. "Gov. Scott picks qualified judges sent to him by the JNC and chooses those who serve with humility and have respect for the rule of law."