After Trump verdict, Rubio, Scott and others threaten to block Biden’s picks for judges
Eight U.S. Republican senators, including Florida’s Marco Rubio and Rick Scott, say they won’t vote to confirm any of President Joe Biden’s nominations for federal judges in retaliation for a New York jury finding Donald Trump guilty of falsifying business records to hide hush-money payments to a porn star.
Their declaration, issued Friday after the Manhattan jury’s verdict against Trump, could spell doom for Biden’s nomination of a widely respected Coral Gables attorney, Detra Shaw-Wilder, as a federal judge in Miami.
If Rubio and Scott stick to their threatened blockade, “the nomination is dead, regardless of how qualified the candidate is,” said top South Florida white-collar defense attorney Jon Sale, who has served on federal nominating commissions in South Florida.
Even before Trump’s 34-count guilty verdict came out Thursday, both Rubio and Scott told the Miami Herald they were not moving forward with Biden’s nomination of Shaw-Wilder, claiming the White House had not properly consulted with them before announcing her appointment in late March.
READ MORE: Florida’s GOP senators hold up Biden’s nomination of top lawyer for federal judge
A senior Biden administration official countered that Florida’s two Republican senators were informed that the Democratic president intended to choose Shaw-Wilder in the weeks before he announced her nomination.
In their declaration publicized on social media Friday, Rubio, Scott and six other Senate GOP conservatives accused the White House of making a “mockery of the rule of law” and “altering politics in un-American ways” as they condemned the New York prosecution of former president Trump, who is expected to be the Republican nominee to face Biden in the November election.
Although the New York case was prosecuted by the Manhattan district attorney’s office — not the U.S. Department of Justice — the eight GOP senators said they were “unwilling to aid and abet this White House in its project to tear this country apart.”
“To that end, we will not ... vote to confirm this administration’s political and judicial appointees,” the Senate Republican conference’s May 31 declaration stated.
The six senators who aligned with Rubio and Scott were Mike Lee, R-Utah; J.D. Vance, R-Ohio; Tommy Tuberville, R-Alabama; Eric Schmitt, R-Missouri; Marsha Blackburn, R-Tennessee; and Roger Marshall, R-Kansas.
Since the eight issued their declaration, two more Senate conservatives have joined the threatened blockade — Josh Hawley of Missouri and Ron Johnson of Wisconsin — and others are expected to pledge to it.
Blue slip for senators to object
While the Republicans represent a narrow minority in the Senate, each senator has the power to veto a president’s nomination for U.S. district court judge in his or her home state by refusing to issue a blue slip for the candidate. The blue slip, a custom over the past century, must be issued by the home-state senators before the Senate Judiciary Committee can hold a confirmation hearing and the Senate can vote.
“As long as the Democrats are going to accept the blue-slip [custom], the Republican home-state senators are going to be able to block Biden’s nominations for district court judges in their states,” Sale said Monday. “The Democrats don’t want to give up that [custom] because one day they may not have a majority in the Senate and they will want to use the blue slip, too.”
During an interview last week with the Herald before Trump’s conviction in New York, Scott suggested that he might be willing to find a “way forward” with Shaw-Wilder’s nomination if the White House considers her and other candidates — not only for the vacancy in Miami but for other openings on the federal bench in the Middle District of Florida. That district includes the Tampa, Orlando and Jacksonville regions.
According to people familiar with Shaw-Wilder’s nomination, the White House has indicated to the senators that it is open to a negotiated package of federal judicial nominees that would include her for the opening in Miami and a candidate for the Middle District.
University of Richmond law professor Carl Tobias, an expert in judicial nominations, said the Republican Senate conference’s threatened confirmation blockade looks ominous for Florida and other states with two Republican senators.
“They intend to vote no on all of these district court nominations, and that will have important implications for Florida and other red states,” Tobias told the Herald, pointing out that vacancies create more case work for fewer judges.
But Tobias said it’s possible a deal could be struck between the White House and Florida’s senators that might pave the way for Shaw-Wilder’s nomination to survive in Miami — if the Biden administration can give Rubio and Scott a choice for a federal judge in the Middle District.
“It’s going to be tough to turn this around” for Shaw-Wilder, Tobias said. But “I have seen how flexible the White House can be on district court nominations.”
Three others confirmed as South Florida federal judges
In late February, the U.S. Senate confirmed three candidates, all former U.S. prosecutors with Ivy League credentials, as federal judges in the Southern District of Florida — including the nephew of Rubio’s biggest donor in his GOP bid for president in 2016.
One nominee was Jacqueline Becerra, who grew up in Hialeah, and is a graduate of the University of Miami and Yale University Law School. She was a magistrate judge in Miami and previously worked as a prosecutor in the U.S. attorney’s office and as a partner with the Greenberg Traurig law firm.
Another was Melissa Damian, who worked in the U.S. attorney’s office before serving as a U.S. magistrate judge in Miami. Damian, a graduate of Princeton University and UM law school, clerked early in her career for former U.S. District Judge Ursula Ungaro.
And the third was David Leibowitz, who obtained his bachelor’s and law degrees from the University of Pennsylvania and then served in the U.S. attorney’s office in Manhattan before working as general counsel for his uncle’s auto empire, Braman Motors, based in Miami. His uncle, Norman Braman, gave millions of dollars to Rubio’s campaign for president in 2016.
The blocking of Shaw-Wilder’s nomination has upset her backers, who cut across the political spectrum and include some members of the conservative Federalist Society. Some have questioned how these three federal judicial nominees from South Florida sailed through the Senate earlier this year and how hers has run aground.
Shaw-Wilder, a 54-year-old Miami native, received her law degree from the University of Miami School of Law and her bachelor’s degree from the University of Florida, before joining the Kozyak Tropin & Throckmorton law firm in Coral Gables in 1994. She became a partner in 2002 and later served as managing partner of the firm.
Miami Democratic Congresswoman Frederica Wilson, who has championed Shaw-Wilder’s nomination, said she feels “personally responsible for the appointment of Detra Shaw-Wilder to the bench.” Wilson pointed out that the late U.S. District Judge Marcia Cooke, who died last year after serving in Miami as the first African-American woman appointed to the federal bench in Florida, asked the congresswoman to promise that she “will make sure that a Black woman replaces me.”
Prominent Miami attorney Joseph Klock, a Democrat who represented then-Republican Secretary of State Katherine Harris in Florida’s presidential election dispute between George W. Bush and Al Gore, said Shaw-Wilder is “eminently qualified” to be a federal judge in Miami.
While he condemned the prosecution of Trump in the hush-money case in Manhattan, he said that his trial is not a sound reason for Rubio, Scott and the other Senate Republicans to threaten a blockade of her nomination or others by the Biden administration.
“For starters, it’s been pending since March” before Trump’s trial began in New York, he said. “Why don’t they just get it done and give Scott what he wants [for a federal judge] in the Middle District?”
Klock, like others in Miami’s legal and political circles, said Shaw-Wilder’s confirmation would be a “proper tribute to Marcia Cooke, one of the finest judges we have ever had in the Southern District.”
