With Republicans in control of all branches of state government for what is approaching nearly two decades, one check on their levers of power has been the Florida Supreme Court, which has at times has served as a safeguard to what some would call the Legislature’s worst excesses, such as redistricting and the death penalty.
Until last month, Gov. Rick Scott hadn’t been able to do a damn thing about the state’s highest court, but that changed when Justice James E.C. Perry was required to step down on Saturday because of a constitutional requirement that judges leave at the end of their term after they turn 70.
Perry’s successor is Alan Lawson, who had been the chief judge of the 5th District Court of Appeal. But while Lawson is Scott’s first opportunity to shape the state’s highest court in his own image, he’s been keeping busy doing so at the lower levels for years. As the News Service of Florida’s Brandon Larrabee reported, all of the state’s five district courts of appeal now have GOP-appointed majorities.
Scott alone has appointed nine of the 15 judges on the 1st District Court of Appeal, which is based in Tallahassee and hears most of the cases challenging the authority of the Governor and the Legislature.
But before we forget about Perry, it’s worth revisiting some of his provocative comments he gave to the Miami Herald’s Mary Ellen Klas in an exit interview published in the Times on Saturday, particularly on the emphasis by conservatives on the whole “originalist” judicial philosophy (he gave a similar interview to the News Service of Florida, of which some of the most provocative comments were excerpted in a column by the Florida Times-Union’s Tia Mitchell).
“They say that the Constitution is stagnant and I don’t think it is. I think it is living — like the Bible is living,” Perry said, referring to the “originalist” argument that first received a broad hearing when Robert Bork was nominated to the Supreme Court, and what is considered the abiding judicial philosophy of Antonin Scalia. “Should I want to be an originalist and go back to the original thinking of the Founders? No. Never. I’m not enamored by places called plantations. That doesn’t give me warm and fuzzies.”
Perry considers the Founders, “flawed people” who were wise but not omniscient.
“They were slave owners,” he said. “These people didn’t have divine intervention. They had some great ideals, but it didn’t include poor whites. It didn’t include women. We weren’t even human beings; we were chattel. It didn’t include the Native Americans, and it didn’t include merchants. It included land owners, or planters they called them.”
He noted that slaves were not allowed to marry, and black men had to submit to their owners at all costs: “They’d come in and want to have favors with your wife — whatever you call her — you would have to stand outside the door. Think about it, just in terms of human sense. How debilitating, how dehumanizing can you get?”
He believes he would “be a fool” to want to turn back the clock to the originalist intent of the founders.
“I’m not trying to divine what they might think about me,” he said. “They didn’t have computers. They didn’t have airplanes. They didn’t have cars. How could they have thought about even putting that in the Constitution?”
Something to consider as Donald Trump decides on his first justice to the U.S. Supreme Court — and when Scott tries to pack the court when he leaves the governor’s office in two years. But that’s a different discussion for a later date.
In other news …
The Florida Republican and Democratic parties will be voting for their state chair in a week and a half. Sarasota state committeeman Christian Ziegler is challenging incumbent Blaise Ingoglia.
Meanwhile, it’s a wide open race with the Democratic Party. Tampa (or should we say Hampton’s) Democrat Alan Clendenin informed state committee executive members over the weekend about his plans to reform the party.