Bush can't fill judge's seat yet

The state Supreme Court says a retiring judge's slot can't be filled early, but a review of candidates can start.

Published September 16, 2006

TALLAHASSEE - Gov. Jeb Bush cannot replace a retiring appellate judge prior to Jan. 1 when the judge's term expires and a day before Bush also leaves office, the Florida Supreme Court unanimously ruled Friday.

Bush, who cannot seek re-election due to term limits, had asked the justices whether he could appoint a replacement for 1st District Court of Appeal Judge Richard Ervin III before Jan. 1.

Bush spokeswoman Alia Faraj said the governor's lawyers were reviewing the opinion and she could not immediately comment on whether he planned to make the appointment in the final hours of his term on Jan. 2 or leave it to his successor.

In a letter to the justices, Bush wrote that the position might remain vacant for up to five months after Ervin's term expires because a judicial nominating commission first must review the candidates and then make a recommendation to the governor.

That's not necessarily so, Justice Raoul Cantero wrote in a concurring opinion joined by Justice Kenneth Bell, both Bush appointees.

Cantero pointed out nothing in the Constitution prevents the commission from beginning its work before Ervin's term expires and that the high court has previously emphasized vacancies should be avoided when possible.

The governor had suggested a "constitutional vacancy," which would permit him to appoint a successor before Ervin's term expires, already exists because the judge did not qualify for a retention election due to his impending retirement.

The high court responded in an unsigned opinion that the Florida Constitution is "clear and unambiguous" that a vacancy does not occur until an appellate judge's term expires.