Choose federal judges for integrity, not ideology

Alexander Hamilton, the Founding Father and contemporary folk hero, had some timeless ideas about federal judges. Here’s what he had to say about that.

“(T)here can be but few men in the society who will have sufficient skill in the laws… the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”

But Hamilton’s concept of the right stuff isn’t Donald Trump’s. With this president, the judicial criteria are, in order, politics, politics and politics.

The president’s passion to pack the federal bench with reliably conservative ideologues, preferably young, white and male, is responsible for some recent embarrassments for the White House and for the overly submissive Senate Judiciary Committee.

One nominee withdrew following disclosure that he had denounced transgender children as part of “Satan’s plan.” Another bowed out after he couldn’t explain to the committee the meaning of common legal terms that any judge would need to know. A third, whom the committee already had recommended on a party-line vote, despite being rated “not qualified” by the American Bar Association, withdrew after it came out that he had failed to disclose his wife’s employment in the White House office that vets prospective judges and had written favorably of “the first KKK.”

Another whom the committee approved, Thomas Farr of North Carolina, faces a stiff fight in the Senate over his alleged involvement in a scheme to scare away black voters during Jesse Helms’s 1990 Senate re-election campaign in North Carolina. Farr has also been counsel to the state’s Republican legislators in unsuccessful defenses of gerrymandering and of a voter suppression law that an appeals court said targeted blacks “with almost surgical precision.”

The Senate’s constitutional role in the judiciary is to advise as well as consent — or not consent — but President Trump seems to be ignoring that in picking candidates for the all-important circuit courts of appeals.

Senators have more of a say over whom the president nominates to the federal district courts, provided at least one of a state’s senators is a Republican. But the committee’s hyper-partisan chairman, Charles Grassley, R-Iowa, has been discarding the one lever remaining to the minority Democrats, the so-called “blue slip” power to block an unsatisfactory court nominee from their own states. The Republicans will regret that when the Democrats regain control.

That brings us to the Florida Federal Judicial Nominating Commission, established decades ago to recommend to Florida’s senators whose names they should send to the White House for appointment to the district courts and as U.S. attorneys. Politics is intruding there as well, and that’s not good news.

Democratic Senator Bill Nelson and Republican Senator Marco Rubio appointed the current commission, with Rubio, as the only senator of the president’s party, choosing 60 percent of the members and the chairman, Florida Lt. Gov. Carlos Lopez-Cantera.

If politics may have played a part in past presidents’ ultimate choices for the federal bench in Florida, the commission provided assurance that the nominees had what Hamilton would consider the right stuff. Politics didn’t come first. Experience and integrity did. Most commission members are said to be still committed to that. There’s no reported controversy over the 10 people recently recommended for five upcoming vacancies in the Southern District, other than that only one is a woman.

But commission members are observing more applicant resumés citing political affiliations, including membership in the conservative Federalist Society, which has Trump’s ear on virtually all judicial appointments. Voting is beginning to split along party lines — notably on whether to discard tradition and reveal how commissioners vote on the various applicants.

Lopez-Cantera persuaded members of two of the commission’s three panels, those for the Northern and Middle Districts, to sign ballots that had previously been secret. To its credit, the Southern District panel refused. The lieutenant governor reportedly said he would share the information with the senators only if they ask. He shouldn’t have it in the first place.

Nelson said this week he doesn’t want to know.

“I oppose that,” Nelson said through a spokesman. “I support the private secret ballot just like it has been done for the last 30 years.”

Rubio’s office didn’t reply to an inquiry, which asked also why he is no longer consulting the commission for U.S. attorney vacancies.

A judicial nominating commission is a rare example of a plausible reason for confidentiality. No lawyer wants to be on record as having opposed someone who will be judging his or her cases. Nor is it wise for the senators or the chair to know who’s following patronage recommendations and who’s not.

Reubin Askew, Florida’s governor from 1971 to 1979, set a brilliant example for how judicial appointments should be made. He respected the independence and judgment of the judicial nominating commissions he had established. He did not second-guess their work and he forbade his staff to meddle with them. He did not want to know how their members had voted on the various applicants, and would have been offended had anyone tried to tell him.

Late in Askew’s life, Supreme Court historian Neil Skene asked him why he had appointed the deeply conservative judge James E. Alderman to the Florida Supreme Court.

“I didn’t appoint him for his ideology,” he said. “I appointed him for his integrity.”

Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Elana Simms, Andy Reid and Editor-in-Chief Howard Saltz.

Voting is beginning to split along party lines — notably on whether to discard tradition and reveal how commissioners vote on the various applicants.