Republican U.S. Senator Marco Rubio, a tea party darling, is blocking confirmation hearings for two black judicial nominees by withholding the formality of submitting what is known as a "blue slip."
Miami-Dade Circuit Judge William Thomas was nominated 552 days ago for a Miami opening in the Southern District of Florida. Nassau Circuit Judge Brian Davis has been waiting even longer — 612 days — for action to fill a Middle District of Florida vacancy in Tampa.
The blue slip is a required by the chairman of the Judiciary Committee, Senator Patrick Leahy, D-Vermont. Waiting for blue slips is a longstanding procedure that the chairman does not plan to break, his spokeswoman Jessica Brady said Thursday.
Florida's other senator, Democrat Bill Nelson, has submitted blue slips for both candidates.
Rubio's and Nelson's offices did not respond to telephone calls or emails seeking comment by deadline.
The failure to submit blue slips marks a ratcheting up of Republican efforts to block President Barack Obama's judicial nominees, even if means alienating minorities, critics say.
Thomas and Davis fulfill Obama's goal of bringing greater diversity to the federal bench. Both are black, and Thomas is openly gay.
Obama has been more dedicated to diversity than any of his predecessors, with 43 percent of women nominees compared with 22 percent under George W. Bush and 29 percent by Bill Clinton. Obama also surpassed his predecessors on nominating blacks and Hispanics.
By delaying the nominations of minorities, Republicans hope to hinder a lasting legacy on the lifetime appointment of jurists, said Andrew Blotky, director of Legal Progress, part of the Center for American Progress in Washington.
"If you look at how long these vacancies have been open, it's ridiculous and unconscionable," he said.
A source close to the nominating process told the Daily Business Review that delays on the blue slips initially led to speculation that routine FBI background checks had turned up something negative.
Tea Party politics
Critics of Rubio's inaction on the Thomas and Davis nominations could reflect his presidential aspirations and primary politics.
"I think certainly he is getting pressure," said attorney Marva Wiley, past president of the Gwen S. Cherry Black Women Lawyers Association in Miami.
She said opposition to the black nominees fits the tea party mold. "It's more consistent with their policies of trying to shut everything down if they can't get what they want," Wiley said.
South Florida bar associations representing black attorneys have gotten no answers about the nominations from Rubio's office. They remain perplexed because Rubio appointed numerous members to the Federal Judicial Nominating Commission, which backed Davis and Thomas.
Rubio interviewed both nominees and recommended them along with Nelson to Obama.
"It's not like he is coming at this blind," Wiley said.
The limbo facing many of Obama's judicial nominees serves as a warning to potential applicants not to try for the federal bench unless they want to become political footballs, she said.
"We try to encourage qualified people to come forward and endure an already arduous process only to be hit with politics like this where it is almost an impossibility to figure what the issue is," Wiley said. "It can be quite overwhelming."
The missing blue slips from Rubio served as the underlying topic at a panel discussion Wednesday on the Wolfson Campus of Miami Dade College entitled, "Diversity and the Federal Bench: A Crisis in Florida."
The event was sponsored by Progress Florida, the National Council of Jewish Women and the Center for American Progress.
Nancy Ratzan, former president of the National Council of Jewish Women, said the idea was to call attention to Rubio's lack of action. She encouraged people to place telephone calls and write letters to the senators.
"Enough people have to know and care for anything to happen," Ratzan said.
Ratzan said Obama is partially to blame for the logjam.
The Bush administration was very organized when it came to pushing nominations, but Obama has largely deferred to senators, Ratzan said.
"Eighty-two percent of the vacancies without names are from states with Republican senators," she noted.
Joseph W. Hatchett, former chief judge for the U.S. Court of Appeals for the Eleventh Circuit, said at the event that delays in filling vacancies undermine public confidence in the rule of law. Backlogged court dockets also have a direct impact in plaintiffs and defendants.
The Administrative Office of the U.S. Courts reports 90 circuit and district court vacancies, with 44 nominees awaiting decisions.
"That is more than all of the federal trial judges on the federal bench in Florida. It would be like closing down the federal courts in Florida," Hatchett said. "We have an emergency."
Blotky said he doesn't know what Rubio could be thinking but stymieing his own state's nominees.
If Republicans have problems with Thomas and Davis, Blotky said they should be aired.
"Now that you suddenly have some objection, let's address it," he said. "We are not saying everybody should get 100-0 votes in the Senate. The senators are allowed to vote their conscience. What we are saying is they deserve a confirmation hearing."
Another panelist was John Arrastia, regional president of the Hispanic National Bar Association. He said blacks remain woefully under-represented on the federal bench and a more diverse judiciary produces fairer results.
He added what is being lost in all the politicking and talk of diversity is justice for the American people. Business owners can't enforce contract law with benches lacking judges. Even class-actions against corporations linger because of the numbers crunch.
"It's now much harder for Americans to get their day in court," he said.