Florida Supreme Court Justices Pariente, Lewis, and Quince must leave the court in January after reaching the state’s mandatory retirement age. At the same time, Gov. Rick Scott must also leave office due to term limits, sparking a debate about whether Scott or his successor has the power to appoint the new justices.

In September, after Scott began the process of replacing the three justices, the Florida League of Women Voters and Common Cause filed suit (again), arguing only Scott’s successor has the power to appoint the justices. On Monday, the Florida Supreme Court issued an order finding that Scott does not have the power to appoint the three justices’ successors. The court found that “the governor who is elected in the November 2018 general election has the sole authority to fill the vacancies.”

But some note Scott has “already exercised enormous influence over the selections” through his appointment of members of the Judicial Nominating Commission, which vets and recommends judicial candidates to the governor. The Florida Times-Union explains, “[f]ive of the [nine] commission members were selected directly by the governor.” And because the JNC’s recommendations are binding, the incoming governor will be “bound to choos[e] among the finalists the commission certifies.”

Brennan Center Urges States to Abolish Elections for State Supreme Court Justices

Last week, the Brennan Center released a new report, Choosing State Judges: A Plan for Reform, calling on states to reform their processes for selecting state supreme court justices.

Brennan Center research has documented how million-dollar campaigns for state supreme court seats are fast becoming the national norm — in fact, one-third of all elected state justices have been selected in at least one million-dollar race, and during the 2015-16 election cycle, more justices were elected in $1 million-plus elections than ever before. Perhaps unsurprisingly, nearly 90 percent of voters believe campaign cash affects judicial decision making, according to a 2013 poll. And alarmingly, “a 2001 survey of state court judges revealed that nearly half — 46 percent — believed campaign contributions had at least some impact on decisions.” The report argues these electoral pressures “threaten the appearance, and reality, of fair decision-making.”

The report urges states to eliminate state supreme court elections and instead adopt a publicly accountable appointment process where an independent, bipartisan, and transparent commission vets candidates and creates a shortlist for appointment by the governor. The report also calls for the adoption of a lengthy single “one-and-done” term for state supreme court justices, rather than holding elections or a political reappointment process for subsequent terms on the bench.