It’s no wonder U.S. Sen. Marco Rubio recommended seasoned Miami lawyer Mary Barzee Flores to fill an opening on the busy federal judiciary in South Florida more than a year ago.
She worked her way through the University of Miami and its law school, spent more than two decades as an assistant federal public defender and state circuit court judge, then joined a top commercial law firm before applying for a coveted federal judgeship.
“What a spectacular judge,” said Edward Blumberg, a Miami lawyer and former president of the Florida Bar Association, recalling his experience trying a complex medical malpractice case in front of her. “She’s one of the best judges I’ve seen statewide.”
Rubio thought so, too. But since Barzee Flores’ nomination by President Barack Obama a year ago, the Miami Republican now running for his party’s presidential nomination has held up her confirmation by not allowing the Senate Judiciary Committee to move forward with it.
Rubio, who had recommended Barzee Flores along with his Florida colleague, U.S. Sen. Bill Nelson, has not submitted a so-called blue slip that would set the wheels in motion for her confirmation — a decision seemingly in lockstep with the GOP-led Senate’s strategy to “slow-walk” the Democratic president’s judicial nominees since early last year. Only 16 federal district and appellate judges have been confirmed since last year by the Senate, including four nominated after Barzee Flores. The president nominated her on Feb. 26, 2015, and Nelson, a Democrat, returned his blue slip for her confirmation immediately.
Rubio’s critics, including some in the Republican Party, say his dilatory strategy is indefensible because, in Barzee Flores, the senator is blocking an ideal candidate for a federal judgeship that has been vacant for almost two years. Indeed, the position has been deemed by the court as a “judicial emergency,” leaving other federal judges with heavier caseloads in South Florida.
“I’ve been honestly shocked by his lack of responsibility as a U.S. senator,” said Miami lawyer Tom Spencer, a Republican who supported Rubio against Democratic challenger Charlie Crist for the Senate in 2010, but backed former Florida Gov. Jeb Bush during this presidential primary season. “She’s an excellent judge. There is absolutely no reason for him not to move forward with her confirmation. It’s an absolute outrage and slap in the face of the people of Florida.”
Rubio’s office took umbrage with a Miami Herald reporter’s question about the senator’s “inaction” on the Barzee Flores nomination, saying that the “Senate Judiciary Committee recently concluded its thorough vetting of the nominee’s background and record.
“Senator Rubio is reviewing it and deciding how to proceed,” Rubio’s spokesman Alex Burgos said in a statement on Friday.
“Anyone suggesting this is inaction misunderstands Senator Rubio’s goals and this process,” Burgos said. “This is a very deliberate effort by Senator Rubio to make sure that any Obama judicial nominee currently in the pipeline to sit on the federal bench for life actually belongs there by virtue of their understanding that the constitutionally mandated duty of judges is to interpret laws, not be political activists.
“Senator Rubio knows that Florida has very busy federal courts, and he would like to see judicial vacancies filled promptly, but he would rather see a judgeship remain vacant for another year than fill it with the wrong person for a lifetime.
“Senator Rubio was elected to provide his advice and consent on judicial nominations, not to rubber-stamp Obama’s flawed judicial nominees. Senator Rubio continues to work with Senator Nelson to appoint consensus district court nominees who, in a period of divided government, can fill Florida’s judicial vacancies.”
Among the once-crowded pool of presidential candidates, Rubio has been rising as a potential challenger to GOP frontrunner Donald Trump. In mid-February, the campaign got a jolt when Supreme Court Justice Antonin Scalia died of a heart attack, turning his vacancy into a red-hot political issue that has focused all eyes not only on his potential replacement but also on nearly 40 stalled federal and appellate court nominations by Obama — including Barzee Flores’.
Rubio has joined a chorus of leading Senate Republicans —including Judiciary Committee chairman Chuck Grassley of Iowa — who have declared that Obama should not appoint Scalia’s nomination during his final year in office, saying that momentous decision should be made by the next president in 2017.
“Within the … last few months of the president’s term, we should not be appointing Supreme Court justices,” Rubio, who is a lawyer, told ABC’s George Stephanopoulos, immediately after Scalia’s death. “In the last year of a president’s term, in his second term especially, there should not be Supreme Court nominees put into lifetime positions for a president that you’re not going to hold accountable at the ballot box.”
Obama strongly disagreed with Rubio and other Republicans, saying he will exert his constitutional authority as president and nominate a candidate to replace Scalia on the Supreme Court. During the past week, U.S. Sen. Mitch McConnell, the Republican Majority Leader from Kentucky, upped the confrontation by pledging that the Senate would not only refuse to vote on a nominee but not even hold hearings and meet with one.
Although the issue of replacing a Supreme Court justice might seem drastically different from filling the vacant position of a federal trial judge, some legal observers view the Republican agenda as obstructive across the board to limit Democratic appointees to the bench.
“The Republicans say President Obama can’t nominate a Supreme Court justice in his last year of office, yet Sen. Rubio can’t follow through on his nomination of Mary Barzee Flores from more than a year ago,” said Miami lawyer Dennis Kainen, a Democrat who sits on the Florida Bar Board of Governors.
“What reason other than politics would there be for him not to move forward on her nomination?” Kainen said. “He’s an intelligent man and knows there’s a need to fill vacancies on the federal bench so that litigants can have their day in court.”
Both Kainen and Spencer noted that Rubio’s position on the Barzee Flores nomination is not the first time that the senator has recommended a federal judicial candidate to the president and then backpedaled.
In September 2013, Rubio withdrew his support for Miami-Dade Circuit Court Judge William Thomas, after recommending him the previous year for a seat on the same federal court as Barzee Flores. Thomas would have made history, if confirmed, as the first openly gay black man to serve as a federal judge. But, after Rubio’s flip-flop on the nominee, Obama decided against resubmitting his name to the Senate in 2014.
Spencer, the Republican, said Rubio is mistreating Barzee Flores in the same manner for no good reason.
“He has stabbed both of them in the back,” Spencer said. “It’s an outrage.”
Glenn Sugameli, a Washington, D.C., lawyer who methodically follows federal judicial nominations, said it is “very unusual” for a U.S. senator to recommend a candidate for a federal judgeship and then hold it up during the confirmation process.
Sugameli, an attorney with Judging the Environment, said Rubio’s puzzling stance on Flores is actually part of a broader GOP mission to run out the clock on Obama’s judicial nominations. “This is not some special circumstances,” Sugameli said. “They have been doing this during the entire Obama presidency.”