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What do Supreme Court Chief Justice John Roberts, Chief U.S. District Judge Federico Moreno and former U.S. Attorney Roberto Martinez have in common? They were all political footballs when their nominations were caught between the administrations of President George H.W. Bush and President Bill Clinton. The nominations of Roberts to U.S. Court of Appeals for the D.C. Circuit and Moreno to the Eleventh Circuit expired, and Martinez found himself out of a job at the U.S. attorney’s office in Miami. The lapsed nominations were far from career killers. Roberts is now, of course, the head of the U.S. Supreme Court, Moreno runs federal courts in the Southern District of Florida, and Martinez went into private practice where he has built a reputation as one of the most respected legal minds in South Florida. But becoming a federal judge, U.S. attorney or federal marshal can be tricky and political. And it all starts with the Federal Judicial Nominating Commission. Martinez was joined by fellow former U.S. Attorney Kendall Coffey and Tew Cardenas partner Thomas Schultz, a former JNC chairman, for a panel discussion titled “Narrowing the Field” on the commission at a meeting of the South Florida chapter of the Federal Bar Association. They said politics plays a big role in the nominating process but not at the commission level. Martinez, Schultz and Coffey have held leadership positions on the commission at one time or another. Coffey currently chairs the 21-member Southern District Conference. The panel’s consensus was that Florida led the way nationally in trying to take politics out of the task of narrowing the field of applicants for Florida’s senators to consider. Each conference recommends up to four applicants to the senators, who make a recommendation to the White House. Senior Status The commission has been particularly busy as of late. Three South Florida federal judges have been chosen by President Barack Obama in about 2½ years: Robin Rosenbaum, Robert N. Scola and Kathleen Williams. U.S. District Judge Patricia Seitz in Miami has indicated she will take senior status next month, but three other judges also could claim senior status: Jose E. Martinez, Donald Middlebrooks and William Zloch. Whether the region’s federal bench will continue its makeover depends largely on them. “Taking senior status is a very personal decision,” Moreno said before the panel discussion in Miami last Wednesday. “I don’t push it.” There is also a pending vacancy created by Judge Adalberto Jordan’s elevation to the U.S. Court of Appeals for the Eleventh Circuit. Miami-Dade Circuit Judges William Thomas and John W. Thornton Jr. and Palm Beach Circuit Judge Robin Rosenberg have been recommended to Senators Bill Nelson and Marco Rubio. One of those three could be the first permanent judge to sit in Fort Pierce unless Republican Mitt Romney unseats Obama and the process starts over again like it did in 1992. The hourlong discussion touched on a variety of subjects from the makeup of the conference, to the commission’s history and what panel members look for in applicants. Martinez said he has the utmost respect for anybody willing to go through the judicial review process. If the applicant is lucky enough to be part of the small group of finalists, they must undergo vigorous background checks and interviews by the senators, the FBI, the White House and Senate Judiciary Committee. They also can bet their family, friends, colleagues — even their neighbors — will be interviewed. “When you are an applicant in this process, you put your ego on the line,” Martinez said. Politics aside Schultz said former U.S. Sen. Connie Mack, R-Florida, approached him in the mid-1980s to help establish a commission without statutory authority to pick federal judges. The commission exists solely at the discretion of the two sitting senators. At any time, the senator of the party in charge of the White House could nix the commission, but there is now an established, nonpartisan tradition that many other states have adopted. Schultz, who served as chairman of the commission for Mack, said the Republican senator and Democrat Bob Graham told him to put politics aside. “They told me not to worry about political matters or ideology. Both senators said that would be left to subsequent consideration and that I should pick, and urge the commissioners to pick, the most-qualified people.” The commission was one body at first, but Schultz said it was split into three conferences for the Northern, Middle and Southern districts. To ensure bipartisanship, the senator of the party in control of the White House picks two-thirds of the conference, and the other senator chooses the remaining members. The commission has come under some criticism in recent years for its lack of female members. Temperament Schultz, Martinez and Coffey talked about what members look for when applicants come in for sit-down interviews. At the top of the list is temperament. “It’s not a good day for an applicant to be in a grouchy bad mood,” Coffey joked. The panel said there is plenty of lobbying on behalf of applicants, but JNC members look for lawyers who know the applicants as opposed to maybe a big name just making a courtesy call. U.S. District Judge Jose E. Martinez, who attended with a number of other jurists, said it was a hardship for him as a private practitioner to apply for a federal judicial opening. He said the same burden isn’t carried by prosecutors, federal defenders or state judges who apply. “The day you are a finalist is the day your clients change to another firm,” said Martinez, who was confirmed in 2002. Miami attorney David Mandel, a partner at Mandel & Mandel and a former federal prosecutor, said he has seen private practitioners get nominated only to get stalled in the Senate for political reasons. As a result, he agreed few private practitioners would risk applying for the federal bench. “The result is that we will end up with a bench populated only by former state court judges and lawyers from government or academia,” Mandel said. He said that’s not a bad pool, but it cuts out a huge part of the legal community. “We should be looking to get the best applicants available, period,” he said. “We are doing ourselves a disservice by effectively excluding the private bar from the candidate pool.” Schultz said it’s an honor to be part of the process that picks jurists. “Of all the things I have done in my professional career, I can’t think of anything that was more helpful or more inspirational to me or more motivational than serving on this commission,” he said. John Pacenti can be reached at [email protected] or at (305) 347-6638.

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