Biden should restore citizen participation in picking U.S. judges
One of Florida’s most important bipartisan traditions has been shattered.
Developed through cooperation and good will rather than by statute, Florida’s federal judicial nominating system, enlisting citizen volunteers to make recommendations, was long a part of the selection process for federal district judges, who conduct trials and have presided over some of America’s most important cases.
This laudable tradition disappeared during the Trump administration.
Now, even with a new president coming into the White House, there is no indication that a similarly transparent framework will be rebuilt. To the contrary, it has been reported that the incoming White House counsel has requested names from Democratic senators, and not citizen volunteers, to be submitted by Jan. 19, for recommendations for U.S. attorney positions and federal district court vacancies.
Rather than a push for Democratic recommendations, a new beginning for a rebuilt bipartisan institution is needed. The Constitution empowers presidents to appoint federal judges — subject to Senate approval — and they serve in this immensely powerful position for their lifetimes. Traditionally, this power was shared between the president and the senators from the judges’ states. Prior to the judicial nominating commissions, the selection was largely invisible and based on private recommendations and inquiries.
Florida, though, with its commitment to open government and Sunshine laws, agreed to a voluntary process for federal nominating commissions. For decades, a citizen’s commission of outstanding Floridians reviewed qualifications and recommended the most qualified candidates to the White House and the Senate. In 1989, when then Sen. Connie Mack documented its purpose, our federal trial judges were properly described as “essential to the rights and freedoms of all citizens.”
From the 1980s, the process continued with a strong partnership between Mack and Sen. Bob Graham and, later, with the leadership of Democratic Sen. Bill Nelson and Republican Sens. Mel Martinez, George LeMieux and Marco Rubio.
Commission members included lawyers as well as other citizens selected by Florida’s senators or, at times, by other government leaders. The party holding the White House would select most of the commissioners, but the other party’s senator would also select members. Following President Trump’s election, the bipartisan process initially continued with support from Rubio and Nelson. After 2018, though, the federal nominating commission was quietly abandoned.
Florida continues, however, to need a transparent and bipartisan process for submitting the names of the most qualified to the White House. Support from the state’s senators has traditionally been important for a president to appoint federal judges from Florida, since it is the Senate that must approve federal judges.
Perhaps Democrats, who now hold an effective Senate majority, may be reluctant to restore cooperation with Republicans and rely on private discussions as well as endorsements from Democratic-leaning organizations, just as the conservative Federalist Society reportedly held such sway over Republican administrations.
While the incoming
White House is not currently fostering a transparent structure for a citizens’ nominating process, Florida should not abandon this critical bipartisan legacy. The need to rebuild bipartisan participation and assure public confidence in the nominating process is greater than ever. Although there is no Florida senator in the new president’s own party right now, Democratic congressional leaders in Florida could establish a nominating commission and invite Rubio and Sen. Rick Scott to participate. Hopefully, they would accept the invitations.
Federal judicial positions are far more than a prize for the victors and should be filled in accordance with the best interests of Florida and the nation.