Source: Slate.com: Rick Scott Is Preparing to Pack the State Supreme Court After His Term Ends
On Jan. 8, 2019, a new governor of Florida will be sworn in. On that same day, three of the Florida Supreme Court’s seven justices will complete their final terms. Based on those facts alone, you might assume that the new Florida governor will have the opportunity to select these justices’ replacements. That, however, is not at all clear—because current Republican Gov. Rick Scott has declared his intent to replace them hours before his term concludes. He is now moving forward with this plan to pack the court. And the only people who can stop him are the current justices themselves.
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.”
Alarmed by this prospect, Common Cause and the League of Women Voters filed a lawsuit urging the Florida Supreme Court to rule that the next governor, not Scott, is constitutionally authorized to make the appointments. Their arguments are difficult to contest. The suit cites a slew of cases in which Florida courts determined that, when “a period of time expires on a date,” it expires at the end of that date. On matters ranging from the terms of a contract to the length of a legislative session, the courts have found that the clock runs out “at midnight” at the end of the final day. For instance, one case found that “when a contract requires payment by June 1, there can be no default until the clock strikes midnight on June 2.” Applied here, this rule means the retiring justices’ term runs through Jan. 8 and expires when the clock strikes midnight on Jan. 9.