Wednesday, April 28, 2021

How are federal judges and U.S. Attorney going to be selected?


No one knows. Jay Weaver covers a lot of the competing interests in this piece. The article starts this way:

When Joe Biden won the presidency, Florida’s congressional Democrats thought they might finally get a chance to serve up his picks for federal judges.

But they had a significant hurdle: Florida’s two Republican senators still dominated the commission that scrutinizes judicial candidates to be nominated by the Democratic president.

So, in an unprecedented move, longtime Democratic Reps. Alcee Hastings and Debbie Wasserman Schultz created their own Florida judicial nominating commission earlier this year to compete with the GOP-controlled Senate panel — even though the House of Representatives has no authority to confirm federal judges for lifetime appointments. The Senate has that power.

The shifting political landscape has caused confusion for judicial candidates seeking to fill two openings for federal judges in the Southern District of Florida and a new vacancy for the U.S. attorney’s job in the same region. Some said it is not clear who will have the last word in recommending finalists for each of the coveted positions.

The judicial openings in South Florida have been created by two U.S. District Court judges assuming “senior status,” Federico Moreno and Ursula Ungaro. The U.S. attorney’s post became vacant with the recent resignation of Trump-appointed U.S. Attorney Ariana Fajardo Orshan.

Among the several candidates who have expressed interest in applying for the judges’ two seats: U.S. Magistrate Judge Jacqueline Becerra, Federal Public Defender Michael Caruso, Miami-Dade Circuit Judge Lisa S. Walsh, Miami-Dade Circuit Judge Tanya Brinkley and Miami-Dade County Judge Ayana Harris.

The U.S. attorney’s post has drawn the interest of former South Florida federal prosecutors Jacqueline Arango, Andres Rivero, David Buckner and Markenzy Lapointe, along with Palm Beach County State Attorney Dave Aronberg.

In the end, President Biden has the sole authority to nominate whomever he wants to be a federal judge or U.S. attorney. But as senators, Florida’s two Republicans, Marco Rubio and Rick Scott, have the unique power to block anyone from being confirmed by the Senate. During the Obama administration, Rubio refused to issue a “blue slip” for two of the Democratic president’s nominees for federal judges in South Florida, Miami-Dade Circuit Judges William Thomas and Mary Barzee, preventing them from going through Senate confirmation hearings. As a result, their nominations stalled.


Anonymous said...


Anonymous said...

Someone give me a civics lesson. How can Rubio and Scott block a Senate vote? If the Senate judiciary gives a party line vote, the Dems control and the nominee proceeds to the full Senate for a vote. The Dems removed the filibuster for federal judges and the republicans removed the filibuster for Supreme Court nominees. So how could they block a vote? Trump nominated judges who lost some GOP senators but passed barely with 50 votes. Those judges include states like CA where both Senators are democrats. What am I missing? If the GOP controlled the Senate, then yes, they would not get a vote but Dems control the judiciary committee and can send whatever nominee for a full vote. No filibuster applies.

Anonymous said...

Also, the reason Rubio was able to block Thomas and Barzee was the GOP controlled the Senate and judiciary committee. That is not the case today.

Anonymous said...

It's called a Blue Slip, honey.

Anonymous said...

Blue slips are tradition. Has anyone been paying attention? The Senate majority leader McConnel said in 2017 that blue slips are not needed to confirm a nominee. Trump appointed federal judges as high as the court of appeal level from states that BOTH senators opposed the nomination. If the GOP scrapped tradition, why do the DEMS need to play by the old rules? Why are there different rules for different parties?

Anonymous said...

I agree with you, 5:00 AM, but thus far, to my knowledge, Blue Slips are respected for district-court nominees.

Anonymous said...

Yes they "were" respected. When the Dems blew up the filibuster for district court nominees and then the GOP blew it up for Supreme Court nominees, the rules changed. Trump did not honor the blue slip tradition and neither did the GOP Majority leader in the Senate.
Should the Dems go back and put the filibuster back for district court judges? You see the point? The rules have been changed and why would Dems go back and play by old rules that the GOP did not follow. I keep reading all about this "tradition" stuff and I scratch my head because its almost like no one lived through the last 8 years of GOP Senate control. You change the rules, you must live with the consequences. Could you imagine any sport where the different teams play and honor different rules of the game? Good grief.

Anonymous said...

One last point before I need to get to the courthouse. To my friends who want to pretend the norms and customs were not blown up over the approx 8 years the GOP controlled the Senate, I get the point that you want to return to tradition. I get that. However, look at the times we live in. One party will block everything. I am a former republican. However during a horrendous insurrection against our country where people were murdered on Capital grounds, Senator Scott gave a speech while the bodies were still warm suggesting the free and fair election was rigged or stolen in Pennsylvania. Seriously, this is the person who you want to give veto power over for District Court nominees in S/FL? Who believes this would work? Nominees should be nominated on merit and they deserve a vote on merit. There is nothing more traditional than that. You want to vote against the nominee you are free but democracy must not be hijacked and we cant let this obstruction continue.

Anonymous said...

I'm not sure you're correct that President Trump or the senate did not respect Blue Slips for district-court nominees (I'm not talking about circuit-court nominees, for which I think Blue Slips make much less sense (because circuits have jurisdiction over more than one state); I know of at least one circuit-court nominee who was confirmed over the opposition of his state's senators). Can you cite any examples?

Rumpole said...

Feats of strength? (Seinfeld). Place them all on a deserted island and the last standing gets the spot. Second last gets a magistrate spot (Survivor).

Jeopardy Challenge:
Judge De La O:
"I'll take supreme Court decisions for 300"

Aaron Rodgers host: "This landmark 1978 Supreme Court decision upheld affirmative action standards in college admissions."

Judge De la O: What is Bakke v. California?"

Aaron Rodgers: "I'll need more information:

Judge De La O: "ummm, what is Bakke vs...umm University of California?"

Aaron Rodgers: "The correct answer is what is Bakke v. Regents of University of California but Judge Tjoflat is saying the answer is acceptable. Select again please..."

Robert Kuntz said...

Lord knows it's always swell fun to bash Team R, and as a rule comments that do so are going to be widely endorsed in this space. But Hastings and Wasserman did no one any favors by setting up their own separate application track. What they have done (and let's be clear, what they meant to do) was to more deeply politicize a process that has been growing ever-more political since about the Reagan administration. The idea of a House-organized JNC is, frankly, a non sequitur, and for many years -- when Florida senators were both Team R, both Team D or spilt between the parties -- the Senate-established JNC process has at least offered some transparency to the means by which judicial nominees were promoted to the President -- who often, but not always, respected those JNC suggestions, even when they came from Senators of opposing parties.

Now applicants for these vital positions are left to wonder how their applications will be assessed if they apply to one JNC and not the other, or if they apply to both. They will very reasonably fear (because they really needn't wonder) that they will be punished according to the prevailing political whims should they show loyalty to Avignon over Rome, or vice versa.

What always astonishes me about these blatant power grabs -- the "unitary executive"; the "nuclear option"; repression of opposing speech; threats to pack the Supreme Court; this, that or the other opportunistic revision of the filibuster rules -- is that the power grabbers never seem to realize that the pendulum inevitably swings and they all too soon find themselves at the other end of the institutional cattle prod that they created.

Hey, maybe this time that won't happen. Maybe Team D will, as it seems intent on doing, so thoroughly establish its hegemony that it will never again be out of power. Maybe. But history and common sense suggest otherwise.

Anonymous said...

Blue slips for district judges never went away.

Anonymous said...

Not to go down a rabbit hole here but presumably we are all attorneys and do like to see accuracy in our debate. So in response to 9:05 AM who wrote about "murder" at the Capitol on January 6, that is a false statement. Ashli Babbit was shot and killed by a Capitol police officer - DOJ declined to prosecute. Kevin Greeson and Benjamin Phillips both died from cardiovascular disease. Roseanne Boyland died from amphetamine overdose. Capitol Police Officer Brian Sicknick died of a stroke (2 actually), not from having his head bashed in by a fire extinguisher and not from "bear spray." These are the facts, and they are not in dispute. We already enough angst in this country without everyone exaggerating.

Anonymous said...

History tells me that Harry Reid was the one who changed the rules and invoked the nuclear option. I think you need to dig a little deeper before you pass the blame and of course conveniently forget about this fact.

Anonymous said...

Republicans threatened the nuclear option first during W's presidency, the gang of 7 defused it. But the hand writing was on the wall. Democrats then used it for Circuit Court of Appeals judges sitting Obama. Then Republicans used it for SCOTOUS with Gorsuch. Lots of blame to go around.

Anonymous said...

Judiciary committee chair Durbin has made it very clear that he would bypass blue slips if the Repub senators abuse them. In particular he gave a warning to Southern senators regarding minority candidates.

My strong suspicion is that Durbin will have an unofficial policy of ignoring blue slips for black and Hispanic nominees.