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Florida’s senators go their own way in nominating federal judges for Biden

Marco Rubio and Rick Scott have both said they won’t participate in Florida’s federal Judicial Nominating Commissions.
Florida senators Rick Scott and Marco Rubio, right, shown here in 2019, have said they won’t participate in Florida’s federal Judicial Nominating Commissions.
Florida senators Rick Scott and Marco Rubio, right, shown here in 2019, have said they won’t participate in Florida’s federal Judicial Nominating Commissions. [ CARL JUSTE | Miami Herald ]
Published Mar. 12
Updated Mar. 12

Florida’s two Republican senators, Rick Scott and Marco Rubio, are refusing to participate in a longstanding, bipartisan system for nominating federal judges that Florida legal insiders say has produced non-political, competent judicial nominees for decades.

Both Scott and Rubio have said they won’t participate with Florida House Democrats who are setting up Florida’s federal Judicial Nominating Commissions — even though bipartisan cooperation has long been typical.

Scott and Rubio called it an infringement on the Senate’s exclusive right to confirm judges.

Instead, the two senators say they’ll rely on their own sources for recommending judicial nominees, as well as on senators’ traditional prerogative to single-handedly block nominees in their home states.

That’s a recipe for another conflict between President Joe Biden’s administration and Republicans in the evenly-split Senate, this time over the crucial question of choosing lifetime appointees to federal judgeships.

It could also further politicize the selection of judges.

“The end of a long tradition in Florida of bipartisanship in the selection of federal judges and U.S. attorneys is a real loss for the state,” said John Fitzgibbons of Tampa, a past Judicial Nominating Commission chairman.

Tampa attorney John Fitzgibbons.
Tampa attorney John Fitzgibbons.

“We have an extraordinary number of talented and capable federal judges currently on the bench who came through the (Judicial Nominating Commission) process. Many of them probably would not be there if it weren’t for a bipartisan process where politics was removed from the selection process.”

Stacking the federal bench with conservatives has been a priority for Republicans under the Trump administration while Republicans controlled the Senate under majority leader Mitch McConnell, R-Ky.

That led to rapid nominations and confirmations of conservative judges, legal insiders say.

As an example, they cite the confirmation in November, two weeks after Biden’s election, of Trump nominee Kathryn Kimball Mizelle to the federal bench in Tampa, despite the American Bar Association’s rating her unqualified.

There’s now pressure from progressives for Democrats to move quickly to nominate and confirm judges, restoring what they say would be balance in the judiciary, before the 2022 election when Democrats’ control of the Senate will be at risk.

Under senators and presidents of both parties, Florida’s federal Judicial Nominating Commission — with separate subcommittees for each of the state’s three federal judicial districts — has suggested several candidates to the White House for each opening for a federal judge, U.S. attorney or federal magistrate.

There’s no legal requirement for the Judicial Nominating Commissions — they have operated as an agreement between whichever senators held office. Fitzgibbons said the system dates to the 1980s, under former Sens. Bob Graham, a Democrat, and Republican Connie Mack III.

The goal, said former Sen. Bill Nelson, a Democrat who participated in it from his election in 2000 until he lost re-election in 2018, was “to take politics out of the selection of the judges so you get judges who are qualified.”

Former U.S. Sen. Bill Nelson.
Former U.S. Sen. Bill Nelson.

The system allows shared control of the Judicial Nominating Commissions by the two parties.

But regardless of the senators’ parties, Nelson said, Republicans had greater influence under Republican presidents and Democrats under Democratic presidents — an acknowledgement that presidents would appoint members of their own party.

Officials in the party holding the White House would choose the Judicial Nominating Commission chairperson and a majority of its members.

In 2001, for example, with Democrats Nelson and Bob Graham in the Senate but Republican George W. Bush as president, then-Gov. Jeb Bush and Republican House members Clay Shaw and C.W. Bill Young chose most of the Judicial Nominating Commission members and the state chairman, prominent Republican lawyer Roberto Martinez of Miami, noted the Florida Bar News that year.

Former U.S. Rep. C.W. Bill Young.
Former U.S. Rep. C.W. Bill Young.

During most of Nelson’s time in office, he served alongside Republican senators — Mel Martinez, George Lemieux and Rubio — but said there was rarely disagreement over choosing the Judicial Nominating Committee’s chairman and often mutual approval of the nominees.

Former Sen. Mel Martinez..
Former Sen. Mel Martinez..

The senators often delegated appointment of the Judicial Nominating Commission’s members to the senior House members of the president’s party.

The Florida Democratic House delegation this year led by senior member Rep. Alcee Hastings of Miami named the three Judicial Nominating Commissions, including appointees of Reps. Kathy Castor of Tampa and Debbie Wasserman Schultz of Weston.

Scott, however, has declined to participate in the system since unseating Nelson in 2018. Rubio is relying on his own Judicial Nominating Commission, which a spokesman said is bipartisan and has existed for more than two years.

Rubio spokesman Dan Holler said Rubio’s Judicial Nominating Commission is a descendent from the one he participated in with Nelson.

“Sen. Rubio is doing the same thing he has done for the past two years,” Holler said. “He’s not abandoning anything.”

But unlike past practice, its membership, meetings, and procedures, including how members are chosen, haven’t been made public. Holler said the membership is bipartisan and would be announced; as to when, he said, “I don’t have a date for you.”

Rubio acknowledged submitting names to Wasserman Schultz, for the Judicial Nominating Commission being organized by Democrats.

But a statement from his office said he did so only as a courtesy and that “he will continue to rely on his own bipartisan commission.”

He also said “this (Judicial Nominating Commission’s) effort has no legitimacy in our eyes with regards to our advise-and-consent role.”

Rep. Kathy Castor.
Rep. Kathy Castor. [ CHRIS URSO | Times (2019) ]

A spokesman for Wasserman Schultz said “several” of those Rubio named agreed to serve.

In a Feb. 26 letter to Biden, Scott accused Florida House Democrats of seeking to usurp Senate authority over judicial appointments through the Judicial Nominating Commission appointments.

He said Democrats “have attempted to insert themselves in the nomination process” while it is “the Senate’s constitutional directive to provide ‘advice and consent’ in the nomination process.”

Scott also referred in the letter to the “blue slip process,” for senators to block judicial nominations in their home states.

The Florida Judicial Nominating Commissions have typically published their procedural rules, made applications from candidates for appointments public and held candidate interviews open to the public, Fitzgibbons said.

Among those pushing for Democrats to move quickly on judicial nominations is the American Constitution Society, a comparatively new national organization of progressive lawyers.

It may function in part as a counterweight to the Federalist Society, a conservative legal group that dominated judicial appointments during the Trump administration.

Members of the organization praised the new Judicial Nominating Commissions announced by the Florida Democrats for including attorneys from a variety of roles.

“We’re seeking professional diversity, as well as racial and gender diversity,” said Society member and retired Tampa lawyer Rochelle Reback, an American Constitution Society member. She said the Judicial Nominating Commissions should include public defenders, civil rights or employment lawyers, “people who have represented normal, everyday individuals, not just big-time corporate lawyers and political donors.”

Among the 21 members announced are St. Petersburg civil rights attorney Ryan Barack and Riverview law professor and diversity activist Joseline Jean-Louis Hardrick.

The Society’s Tampa chapter head Rashad Green noted that the Biden administration could decide not to honor the traditional, but not legally mandated, blue-slip process, which he said “is supposed to be a way for senators to insure quality nominees, not necessarily to protest the party that won the presidency.”

That could mean forcing nominees through the 50-50 Senate, relying on the tie-breaking vote of Vice President Kamala Harris.

Society member Evelyn Sheehan said she regrets what could be the demise of the Judicial Nominating Commission system.

“For the level of appointments we’re dealing with, competence and integrity should be what’s at stake,” she said. “It’s a long-standing bipartisan tradition that has now been undermined.”

Contact William March at wemarch@gmail.com.