Here were the perils of being Marco.
A throng of vexed constituents gathered on the plaza by the Wilkie D. Ferguson, Jr. United States District Courthouse in downtown Miami Wednesday. For anyone dabbling in Miami politics, this was not an insignificant gathering.
Here were representatives of the Wilkie D. Ferguson Jr. Bar Association, the Miami-Dade NAACP, the Gwen S. Cherry Black Women Lawyers Association, the Haitian Lawyers Association, the T.J. Reddick Bar Association, the Dominican Bar Association, the Caribbean Bar Association. This was no small segment of the black legal and political firepower in Miami, all come to complain that two good, well-vetted candidates for the federal judiciary had become collateral damage in Marco Rubio’s lowdown political maneuvering.
Oh, yeah. And there was Betty Ferguson, the former Miami-Dade County Commissioner and the widow of the county’s first black circuit judge and namesake of this very courthouse. Judge Wilkie Ferguson was later appointed federal judge, though that came at a time when district judicial nominees weren’t held hostage in the Washington power game.
Sen. Rubio had earned their collective ire by blocking Senate consideration of Miami-Dade Circuit Judge William Thomas and Nassau Circuit Judge Brian Davis for the federal bench. Yolanda Strader, president of the Ferguson Bar Association, noted that President Obama had nominated Judge Thomas 10 months ago for the Southern District court in Miami, while Davis’ nomination has been languishing for 16 months. Both candidates are black.
Neither judge can get a confirmation hearing, according to the peculiar convention observed by the Senate, until both home state senators submit a so-called “blue slip” for each judge. Bill Nelson gave his go-ahead. Marco Rubio turned obstinate.
Both candidates were vetted by Florida’s Federal Judicial Nominating Commission. Both were rated “well qualified” by the American Bar Association. And both were recommended to Obama by Nelson and Rubio. In May 2012, Sen. Rubio introduced Davis to the Senate Judiciary Committee, saying, “One of the pleasant surprises of this job is the quality of individuals who offer themselves for public service, and the quality of individuals who we’ve been able to forward to the president, to the White House, today being no exception.”
Times change. Rubio has since taken a drubbing from the Tea Party for the temerity of championing immigration reform. His rehab strategy (and his hope for the Republican presidential nomination) has been to appease right-wing zealots who see any cooperation with the president as utter duplicity. Even when it comes to the confirmation of lowly district judge appointments.
Rubio’s office has tried to rationalize why he has blocked the hearings. Something Davis uttered in 1994 seems to have been impolitic. A sentence meted out by Thomas in a hit-and-run fatality seems to have been too lenient. But no one believes these holds are anything but Washington politics gone amok. Davis and Thomas are just two of 43 federal judicial nominees stalled in the Senate.
In May, the Congressional Research Service issued a report noting that “President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year.” That was an average of 215 days the first term, a wait that has come to look downright fast-tracked in the perpetual gridlock of his second term.
The repercussions transcend politics. If not for judicial ethics, working district judges, waving their gavels, would have come storming out of the federal courthouse with their own protest of Rubio’s political meddling. The Southern District already has three vacancies. Two more district judges plan to move into senior, part-time status next year.
Cases and the workload have been piling up, until the Administrative Office of the federal courts declared a “judicial emergency” in both the southern and middle districts of Florida. “Florida’s federal trial courts are in a state of crisis because of the overwhelming number of vacancies,” Annika Ashton, vice president of the Caribbean Bar Association, said Wednesday. “Our community cannot afford continued unexplained delays in the confirmation of judicial nominees.”
Even if all the federal district court vacancies were filled, the courts would still be in perpetual crisis. Congress hasn’t dealt with judicial staffing since 1990. Meanwhile, caseloads of individual judges have risen 40 percent. We need more judges. Instead, we’ve got 43 nominees left in political limbo.
The folks gathered at the courthouse Wednesday were particularly upset at the racial aspect of the Rubio holds, that the senator has sabotaged the confirmation of two black candidates in a federal judiciary woefully bereft of black judges.
But like so much else that comes with the politics-as-total-war madness, like the sequester or the looming government shut-down, political gamesmanship in Washington has real consequences back home. In Miami, Rubio is not just fomenting political and racial divisiveness, he’s clogging the courts. He’s impeding justice.