TALLAHASSEE, Fla. – Florida Supreme Court justices Charles Canady and Ricky Polston will almost certainly have a conservative colleague to join their frequent splits from the court's majority when Gov. Rick Scott appoints a replacement for Justice James E.C. Perry.
Perry's constitutionally mandated retirement gives Scott the opportunity to continue moving Florida's appellate courts to the right, and the three nominees to replace Perry left no doubt this week as to how they would rule if appointed to the state's highest court.
Fifth District Court of Appeal judges C. Alan Lawson and Wendy Berger and civil lawyer Dan Gerber made the final cut Monday from six women and five men who went before the Scott-appointed Supreme Court Judicial Nominating Commission. The governor had asked for six nominees by mid-December, but wound up with a list of three.
"While I certainly, and the commission, strive to give the governor the maximum amount of names, sometimes that just doesn't happen in the process," Supreme Court Judicial Nominating Commission Chairman Jason Unger told The News Service of Florida in a telephone interview Tuesday. "Governors usually ask for the maximum. And we try to respect that, but we are sometimes not able to vote out six names."
Lawson and Gerber were both nominated the last time there was an opening on the court in 2008, but were passed over by then-Gov. Charlie Crist, who instead tapped the man they are seeking to replace.
Perry, one of two black justices on the seven-member court, frequently is part of a liberal-leaning majority in decisions that have chafed Scott and the Republican-dominated Legislature.
The three high-court hopefuls, during interviews with the commission Monday, made clear that their allegiances lie with Canady, a highly respected jurist who is on President-elect Donald Trump's list of potential U.S. Supreme Court picks.
"The brilliance is there. Every Thursday you look and say, OK, let's see what the dissenting opinions have brought this week," said Gerber, a partner with the Rumberger, Kirk & Caldwell firm in Orlando.
If selected by Scott, Gerber would be the first justice in 14 years appointed to the high court without any previous experience on the bench. He also could wind up being the next chief justice, because all of the other justices on the seven-member court have served in that role.
Historically, the role of chief justice rotates to the court's next-senior member every two years. Perry would have been in line to become chief justice July 1 but chose not to seek the position because he would have to retire several months later. Breaking with tradition, the court re-elected Chief Justice Jorge Labarga to serve a second term, making him the first to do so in more than a century.
Gerber's lack of a judicial record creates uncertainty about how he might rule, an issue raised by at least one commissioner on Monday.
But Gerber's experience litigating on behalf of clients like Publix Supermarkets and Orkin, his extensive appellate work and his criticism of the Supreme Court's administration --- in addition to his previous nomination --- could make him a prime pick for Scott, an attorney and former health-care executive.
A lawyer would provide insight into how "users and consumers" interact with the courts, Gerber told the nine-member nominating commission Monday.
"Every now and then we need a practitioner to go on the court and bring practical experience and judgment to the court," said Gerber, a University of Florida College of Law graduate.
Gerber, 53, called the Supreme Court's procurement process "antiquated" and "simply too loose."
"I don't think they lend themselves to what we would consider in private free-enterprise systems," Gerber said, pledging to "cut waste" and make the "consumer experience more efficient, more fair and more effective."
Perhaps even more important, Gerber also promoted the same "rule of law" judicial approach espoused by The Federalist Society, embraced by Scott, and mirrored by the other two nominees.
The prominent conservative legal group, with about 2,000 members in Florida, adheres to the "originalist" and "textualist" philosophy maintained by the late U.S. Supreme Court Justice Antonin Scalia. Jason Gonzalez, Florida co-chair of the Federalist Society, said judicial conservatives believe "that judges should focus on original meaning of the text of the law, rather than taking a more 'activist' approach where the judge stretches or ignores the text of the law to reach a desired outcome in a case,"
Gonzalez said he was encouraged that the Supreme Court interviews focused more on judicial philosophy than they may have in the past. Gonzalez served as Crist's general counsel at the time of the last four Supreme Court vacancies.
"A judge or justice's judicial philosophy or approach to interpreting the written law is highly relevant, especially for aspiring appellate judges. Judicial philosophy differs from personal beliefs or political ideology, which should never influence how a judge applies the written law," Gonzalez said.
Scott is required to choose a justice from the sprawling region covered by the Daytona Beach-based 5th District Court of Appeal. The region stretches across the state from Brevard to Citrus counties and includes counties such as Orange, Volusia, Marion and St. Johns.
Selecting Lawson or Berger --- who each earned a law degree from Florida State University --- would give Scott the chance to make another appellate court appointment.
Berger, appointed by Scott three years ago to the 5th District Court of Appeal, was reimbursed for a hotel room by the Federalist Society when she was a moderator of a panel discussion entitled "Perspectives on the Florida Judicial Selection Process" at the group's statewide conference in 2015, according to her application for the Supreme Court opening.
The Supreme Court justices' role is "to apply the law, to interpret the law," Berger told the nominating commission Monday.
"It's not to make it, or force my will upon the people through a written opinion," she said.
Berger's youth --- she is 47 --- provides Scott the prospect of having his legacy reflected on the court for more than two decades.
Berger formerly served as then-Gov. Jeb Bush's assistant general counsel in charge of the death penalty and clemency, and earned a reputation for meting out stiff sentences during her tenure as a circuit judge, factors which could appeal to tough-on-crime Scott.
While the court spends more than half of its time dealing with death penalty cases, Scott is expected to be more focused on civil matters in trying to reshape the court.
Lawson, who was promoted by social conservatives during the nomination process in 2008, has the broadest experience of the three nominees, having served as a trial lawyer, a circuit judge and, now, chief of the appellate court.
"Anyone who applies for this position can say that they are committed to the ideal of judicial restraint and will faithfully follow the law if appointed. I do not know that any other applicant will have a track record to prove that commitment," Lawson, 55, wrote in his application.