Florida Governor Rick Scott is mulling three names to replace outgoing state Supreme Court Justice James E.C. Perry. The nominees are three conservative jurists from the Orlando area.
Justice Perry will step down from the bench later this month, and his exit gives Governor Scott his first chance to fill a vacancy on the state Supreme Court. The republican governor will seek to shift the balance of power on the court toward his own conservative point of view, and his decision could have a lasting effect. Generally speaking, the justices are split 5-2 with liberal judges holding the majority. By nominating another conservative, Scott could cut that to 4-3, empowering whichever judge finds him or herself in the middle.
“I believe that we as judges should exercise judicial restraint,” Judge Wendy Berger said in her interview, “and not just hear every controversy because we think it’s interesting or we want to pontificate on it, that’s not our role.”
The Fifth District Court of Appeal judge is one of three nominees forwarded to the governor. He’s already familiar with her because he appointed her to the appeals court in 2014, and at 47 she could remain on the court for more than 20 years. She told the judicial nominating commission her proudest achievement was with drug court.
“Initially I went in there thinking to myself we’re not going to be clapping for a bunch of drug addicts,” Berger said. “I mean it was a sort of social justice that I just didn’t—I wasn’t all in on it. But I tell you it did not take me long to see the transformation and see that drug courts work.”
The commission’s second recommendation is the Fifth District’s chief judge, C. Alan Lawson. He wrestles with the question of whether to honor precedent or original intent when the two seem to be at odds, noting precedent is important when social expectations have grown up around it. Still, he says experience as an appellate judge pushes him toward favoring intent—especially on constitutional questions.
“You do the original analysis,” Lawson says. “You look and ask what the statute is, and that becomes second nature.”
“And I think in all the cases I tend to—even if it’s not briefed that way, even if the law clerk doesn’t give you a memo that way, I’ll frequently disagree with the law clerk because I’ll look at a case sort of originally,” he goes on, “and I think that’s really really important.”
He favors precedent for statutory questions because the legislature can quickly revisit the issue if it finds fault in the decision.
Lawson got nominated the last time there was an opening, and so did Orlando area attorney Dan Gerber. He’s the only nominee without experience as a judge, but he says that perspective could be good for the court.
“I think it’s very important to have a practitioner’s point of view on the Florida Supreme Court,” Gerber says, “because users and consumers of the court have to be considered in the fair efficient and effective administration of justice.”
Florida uses a modified appointment system, with a judicial nominating commission selected by the governor and the Florida bar narrowing the field before the governor makes his or her final pick.
The three nominees represent the minimum number of options the commission could recommend. Governor Scott asked for double that—the maximum number of nominees—but a majority of commissioners could only agree on Berger, Lawson and Gerber. Scott has until January 28 next year to settle on his choice, but with Justice Perry vacating his seat in December, Scott’s decision could come sooner.
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