UPDATED: State Supreme Court Hopefuls Strike Originalist Tone

Nov 28, 2016

Ninth District circuit judge Alice Blackwell
Credit Florida Channel

U.S. Supreme Court justice Antonin Scalia may be dead, but his legacy is alive and well among those hoping for a seat on Florida’s Supreme Court.  With a vacancy opening up next year, nominees are touting their adherence to Scalia’s brand of constitutional originalism.

UPDATE 11/29/16 9:40 a.m.:

Late Monday evening, the judicial nominating commission forwarded three names to Governor Rick Scott for consideration.  The short list includes Orlando attorney Dan Gerber and Fifth District Court of Appeal judges C. Alan Lawson and Wendy Berger.  Lawson serves as the court’s chief judge.

All three identify themselves as conservative, originalist jurists in the mold of U.S. Supreme Court Justice Antonin Scalia or Florida Supreme Court Justice Charles Canady.

Asked to describe what her role would be on the court, Berger said, “to apply the law, to interpret the law, it’s not to make it, or to enforce my will on the people through a written opinion.”

The governor will have sixty days to decide between the nominees.

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A total of 11 men and women are hoping to take over for Justice James Perry when he steps down at the end of the year.  The judicial nominating commission will narrow that list, and then Governor Rick Scott will make the appointment. 

To curry favor the candidates are playing up their conservative credentials.  One commissioner, Jesse Pannucio, asked Ninth District circuit judge Alice Blackwell what it means to be a rule of law judge.

“I think it means essentially being what people call an originalist—the sort of Bork concept, Scalia concept of originalism,” Blackwell told the commission.  “And to me that means figuring what do the words mean that are in the law.”

Assistant U.S. Attorney Roberta Bodnar returned to the originalist theme when Pannucio asked her about the idea of a living constitution.

“I think that if you’re going to go looking for a principle to apply in interpreting a statute, a constitutional doubt for example,” Bodnar said, “I think you look at how those terms were understood at the time they drafted the constitution.”

Whichever candidate Scott selects, his or her role on the court will likely be reinforcing the conservative minority.  The shift would dilute the liberal wing’s control of the bench, and by reducing its majority from two to one, it could give greater influence to justices who find themselves in the role of swing vote.