Florida Amendment 3: State has history of limiting governor’s discretion on judicial picks

Florida’s Amendment 3 would allow for governors to prospectively appoint judges and justices of the appellate courts> The history of Florida’s appellate judicial selection shows a state, like many others, that has tried to gauge how to handle the power of appointment for governors. The state’s intermediate appellate court (District Courts of Appeal) did not exist prior to 1957. Aside from a 12-year period from 1865 to 1887, Florida governors have either not had the power to appoint judges or have it with restrictions such as Senate super-majorities (1861-1865), or judicial nominating commissions that limit the list of people the governor may considered (1972 to present).

Constitution of 1838: Legislature only, no role for the Governor; life terms

Article V of Florida’s 1838 constitution created a Supreme Court (Section 1) but provided that the judges of the Circuit Courts, collectively or a majority of them, would sit as the Supreme Court until the General Assembly could set up the Supreme Court (Section 3), a relatively common practice in other states/territories of the time. The legislature alone selected Supreme Court’s justices by concurrent vote of both houses.  The first slate of Justices would serve for 5 years, thereafter the next group (or the same if re-elected) would serve for life (“during their good behavior”). From 1838 to 1851, the legislature never put forth implementing legislation, thus a majority of the Circuit Court judges served as the Supreme Court for almost 15 years.

Post-Statehood Amendments: From legislature to popular election; 8 year terms

After gaining admission into the Union in 1845 the state set out to finally set up a Supreme Court. Under an 1848 amendment a slate of Supreme Court Justices would be elected by the legislature at the end of the current terms of the Circuit Judges (around 1851). This new/first slate of Supreme Court Justices would serve for 8 years. Implementing legislation was adopted in 1851 and the Supreme Court sat as a court with its own justice at that time.

The practice of legislative-election did not last for very long after that first sitting and in 1853 another constitutional amendment transferred the power to elect the Supreme Court to statewide (“general ticket”) popular election.

Constitution of 1861 (Confederacy): From popular election to Governor with 2/3rds of Senate; 6 year terms

Upon voting to secede in April 1861 Florida adopted a new constitution, this one moving towards an appoint-and-consent model. The Governor appointed members to the Supreme Court, but it required the advice and consent of two-thirds of the Senate, not a simple majority. The Justices would serve for 6-year terms. (Art. V, Sec. 10)

Constitution of 1865: Governor with simple majority of Senate; 6 year terms

After the Civil War Florida’s next constitution kept the appoint-and-consent model, but dropped the threshold to a simple majority of the Senate. The Justices would serve for 6-year terms. (Art. V, Sec. 10)

Constitution of 1868: Governor with simple majority of Senate; life terms

Yet another constitution was adopted in Florida less than 3 years after the prior one. The 1868 constitution kept the provision regarding their being “appointed by the Governor and confirmed by the Senate” but gave their terms as “life or during good behavior.” It also provided that the governor may only pick a practicing attorney that was at least 25 years of age (Art. XVI, Sec. 30)

Constitution of 1887: Back to popular election; 6 year terms

Florida returned to the practice of popular election of Supreme Court Justices in its 1887 constitution. The 3 Justices were to serve for 6 year terms, although the first group was divided so that one justice would only serve 2 years and another 4. (Art. V, Sec. 2).

In 1902 an amendment expanded the court from 3 justices to 6 and for the limited purpose of filling the new vacancies until the election of 1905 let the governor appoint and the senate confirm. Thereafter the Supreme Court’s membership was allowed to float between 6 and 3 and the desire of the legislature, provided that justices couldn’t be deprived of their current office by virtue of the legislature eliminating the seat out from under them.

In 1932 an amendment was defeated to expand the court to a fixed, permanent 7 justices and allowed the governor to appoint 1 justice to fill out the court on a temporary basis until election(s) could be held.

In 1940, the 1932 amendment was effectively resubmitted and this time approved.

1956 Amendment: Creation of District Courts of Appeal with popular election; 6 year terms

Similar to the situation at the Florida Supreme Court in 1902 and 1940, when the District Courts of Appeal were created under a 1956 constitutional amendment the first slate of judges were appointed by the governor but without senate confirmation. Thereafter, the judges were to be elected by the population in this respective districts every 6 years, although the first group was divided so that one judge would only serve 2 years and another 4. The Supreme Court was also broken up in to 2-3-2: two justices to be elected in 1958, three in 1960, and two in 1962.

Constitution of 1968: Partisan, then non-partisan, popular election; 6 year terms

The Florida Constitution was readopted in 1968 and once again included provision for the statewide popular election of justices of the supreme court and the district-by-district popular election of judges of the district courts of appeal. Originally these were partisan races, however in 1971 these were changed to nonpartisan by statute.

1972 Amendment: Judicial nominating commissions with gubernatorial appointment; popular elections remain

Simultaneous with the (statutory) change in 1971 to nonpartisan judicial races was an effort for (constitutional) change to a commission-based or “merit” selection system for all courts. That amendment, encompassing the Supreme Court and District Court of Appeals was adopted in 1972 however it kept the existing provisions for popular elections for subsequent terms.

1976 Amendment: Judicial nominating commissions with gubernatorial appointment; popular elections remain

The 1972 amendment was itself further amendment 4 years later 1976 amendment to move from popular election to yes/no retention elections instead.

1996 Amendment: Limit names submitted to Governor to 6

In November 1996 an amendment was approved to provided that the commissions were to provide the governor “not fewer than three persons nor more than six persons.”