Senate and House panels battle for influence over Florida’s federal judge picks

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 U.S. 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 Judges Lisa S. Walsh, Tanya Brinkley and Miguel de la O, as well as 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.

Rubio, Florida’s senior GOP senator who has played an influential role in picking judicial finalists over the past decade, declined to comment on the dueling Senate and House nominating commissions. But a spokesman for his office said Rubio has no intention of giving up any power over the selection of federal judges and U.S. attorneys in Florida, even though Biden is president.

“As he has done his entire time in the Senate, Sen. Rubio will continue to rely on his own bipartisan commission to assist in fulfilling his role in the Senate’s constitutional duty to provide advice and consent on judicial nominees,” spokesman Dan Holler told the Miami Herald.

A spokesman for Wasserman Schultz, who had been collaborating with the late Congressman Hastings before his death earlier this month, did not respond to a request for comment on the emerging power struggle between the House and Senate judicial advisory panels. In an email, the spokesman sent a statement by Wasserman Schultz saying the House panel’s goal is to “produce a strong slate of candidates” for federal judges in Florida.

“I am confident that the diverse leadership of the regional Florida JNCs ... will take into account that diverse communities have too often been left out of these vital considerations on who should lead our system of justice,” Wasserman Schultz said in the statement provided to the Herald. “We are working to build a process that the public can trust to do this vital work and that will recommend diverse talent from the deep bench in our state,” Wasserman Schultz said.

In a message to federal judicial applicants, Hastings said the new congressional nominating commission is not meant to compete with Rubio’s Senate judicial panel.

“The establishment of these regional [judicial nominating commissions] is not intended to usurp the constitutional directive that the Senate provides ‘advice and consent’ in the federal nominations process,” Hastings’ message read. “These conferences are simply designed to assist with the selection of suitable candidates to be considered by Florida’s senators and the White House.”

But in March, Rubio pushed back. He issued a statement saying he was not a “participant” in the congressional nominating commission, though he provided the names of Republicans as possible panel members at Wasserman Schultz’s request because of their “longtime working relationship” in Congress.

Both Democratic and Republican legal observers said whoever wants to apply for the two federal judge openings and U.S. attorney’s job in South Florida would be wise to submit their applications to both the Senate and House panels, which largely consist of lawyers, former judges and others with political connections.

“I wouldn’t advise any candidate to blow off the House panel, as President Biden may rely on it as a sounding board,” said Miami attorney John Byrne, a former federal prosecutor who has been following the creation of the two Florida nominating commissions in recent months. “But, at the end of the day, our federal judges are appointed with the advice and consent of the Senate, not the House.

“As the only senator-approved commission right now, Sen. Rubio’s judicial advisory commission will play an essential role in the process,” Byrne said.

A past member of two federal judicial nominating commissions — one picked by Rubio, the other selected by Rubio and former Democratic Sen. Bill Nelson — said he doesn’t envision a competition between the two new Senate and House panels in Florida.

“I would advise all candidates to apply to both the House panel and Sen. Rubio’s panel,” said Jon Sale, a prominent white-collar defense attorney in South Florida. “I do not see them as competing.”

“It was always my experience that the sole objective was to give advice to the senators regarding the selection of the most qualified candidates for one of the busiest and best benches in the United States,” Sale said. “I am sure that is the objective of both the House and Rubio panels now.”

The seven-member House nominating commission in South Florida, which accepted applications for the two federal judge openings and U.S. attorney’s post through last week, is headed by retired Miami-Dade Circuit Judge Ilona Holmes. Retired Florida Supreme Court Justice Barbara Patiente also serves on the House panel. The panel, which includes five Democrats and two Republicans recommended by Rubio, plans to start interviewing judicial applicants in May.

Rubio’s 15-member judicial advisory panel is headed by two high-profile Florida Republicans, former Lt. Gov. Carlos Lopez-Cantera and attorney Manny Kadre. But the panel also consists of a couple of well-known Democrats, including Miami Beach Mayor Dan Gelber, who is a lawyer. Rubio’s panel is also accepting applications for the two federal judicial openings and the U.S. attorney’s job.

Rubio has already indicated his support for former federal prosecutor Markenzy Lapointe, who, if nominated, would be the first Haitian-American U.S. attorney in South Florida.

The Biden administration has also shown a keen interest in Lapointe as the top federal prosecutor, according to sources familiar with the selection process.