Florida Gov. Rick Scott (R)

Florida could be headed for a state constitutional crisis over judicial appointments in early 2019 that has deeply troubling implications for the fate of two constitutional amendments that voters passed in 2010 to combat partisan gerrymandering. Republican Gov. Rick Scott faces term limits in 2018 and has to leave office on Jan. 8, 2019. The liberal bloc on the state Supreme Court currently has a 4-to-3 majority over conservatives, but three of the liberal-aligned justices face mandatory retirement the same day as the governor departs. Scott and Republicans are trying to fill those seats to flip the court to a 6-to-1 conservative advantage.

The controversy over the matter stems from the fact that Scott's successor as governor would be sworn in earlier in the day on Jan. 8; the judges, on the other hand, will still serve on the bench until the end of the day, meaning a potential Democratic successor could fill their seats. Logically, it would seem that the next governor should get to nominate replacement judges, but the state Supreme Court itself recently denied a motion from the nonpartisan League of Women Voters that sought to clarify the issue before this looming crisis actually unfolds. The court said the issue isn't yet "ripe" because Scott hasn't actually made appointments yet.

Unfortunately, this leaves the court itself in the awkward position of likely having to rule in the future whether Scott's appointments are lawful if he still goes ahead with this plot. However, Scott's own lawyer appeared to concede that the governor doesn't have the authority to make these appointments unless the judges step down early. Indeed, Republicans even tried to pass a state constitutional amendment to expressly give Scott this power, but voters rejected it in a 2014 referendum, something they wouldn't have attempted if they thought Scott had this authority.

Nevertheless, Scott himself may not even need to attempt to make illegal appointments to the court. Florida's governor can only choose judges from a list of names supplied by the Judicial Nominating Commission. The governor himself gets to appoint five members of that commission, while the state bar association fills the other four positions. However, Scott has regularly used his power to block all of the bar's proposed nominees and request they submit new lists, having rejected at least 90 names since taking office in 2011. Scott has thus used his authority to ensure that only ideologues who suit him earn judicial nominations, even though the process is supposed to be merit-based and apolitical.

Consequently, even if Democrats win the race to succeed Scott next year, they may find themselves hamstrung by having to choose from a list of judicial nominees that consists of nothing but partisan Republicans. What’s more, if they tried to sue—either to challenge Scott’s last-day appointments to the Supreme Court or his abuse of his power over the Judicial Nominating Commission—such a case would ultimately be heard by the very same Supreme Court that’s at the center of this matter. And even if Scott’s appointees aren’t seated, a high court with three vacancies would have a three-to-one conservative majority.