Felix Frankfurter, 1937.
Judges Ivonne Cuesta and Laura Stuzin were elevated from county court to circuit court this week, replacing the vacancies that occurred with the retirement of Judge Cardonne-Ely, and elevation of Judge Lindsey to the 3rd District Court of
Judges Altfield, Brinkley and Multack, along with ASA Luis Perez-Medina were among those whose names were sent to Tallahassee but were not given a seat when the music stopped.
Judge Rosa Rodriguez, a former Dade Public Defender, resigned from the Circuit court after 18 1/2 years on the bench, effective Halloween, 2017. Boo!
Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.
Francis Bacon, "Essay LVI: Of Judicature", Essays (1625).
Some rise by sin
ReplyDeletesome by virtue fall
Measure for Measure
I think very highly of Judge Cuesta and Judge Stuzen. Despite my misgivings about Governor Scott in virtually every other decision he has made, picking judges in Miami-Dade County, he has excelled. Ayana Harris was also sent up for the vacancy and yet again she was passed over, despite being qualified and widely regarded as possessing the proper temperament and life experiences to serve on the circuit court bench. The largest county in the third largest state in America is still without an African-American female sitting on the circuit bench. I know there will be blog commentators that balk at the notion that I am griping about the fact that there isn't a black woman sitting on the circuit court bench. But representation matters. Diversity matters. We are better and stronger when we have a judiciary that reflects the community that they serve. The Governor needs to appoint Ayana Harris to the circuit court bench.
ReplyDeleteThis may cause a bomb to go off, but in response to the prior comment, I wonder- meaning I put this out for discussion- what a person's race and gender has to do with their qualifications for the bench.
ReplyDeleteFor example, we would never tolerate a Governor saying they selected a candidate because he was a white, wealthy male and such individuals make good judges.
But I think many of us would applaud an appointment of an African American woman because of what the prior commentator says. There is a value, and our understanding of it is perhaps inchoate- of having a diversity of ideas and life experiences in the judiciary. For example I learned yesterday that Judge Cuesta was a mariel boatlift refugee. There has to be an undetermined value of having a person who lived through such an experience as a child on the bench.
For me, here is the conundrum- at what point does the value of diversity- and it is a value that should not be under estimated- overcome the value of an individual?
We cannot rate a person's competence scientifically. But if we could, who should get an appointment- a white male judge with a competence value of 95 or an African American Female or Hispanic Female refugee with a competence value of 94?
Since that is a question that cannot be answered, perhaps it's simpler to consider this. If you were governor and interviewed two candidates and had a personal feeling candidate A would be a slightly better judge than candidate B who was an African American female, who would you choose?
I think the lack of diversity on the Dade Circuit bench would and should push a governor to candidate B. There is a value and power in a litigant or a witness or the general public walking into a courtroom and seeing a person who looks like them and who has shared common social experiences in being Judge.
I'm old enough to remember when a female judge caused an uproar. Mattie Belle Davis for example. And yet judges like her and those who followed her must have in some way caused young women to believe such a career was possible for them. And such thoughts eventually caused a change so that now we have qualified judges like Cuesta and Stuzin who I am sure gave no thought to their gender as a possible issue.
These are tough issues. Because we started in a society that made race an issue by discriminating against people of color and because of religion (You can see in Google images plenty of signs on Miami Beach in the 1940's and 50's- "No Blacks or Jews").
We then decided that making race based decisions was wrong. But that only served in a perverse way to prolong the inequalities of race and gender because now people who just needed a chance weren't being given one.
Our ideal is a society where all people compete based on ability. But to get to that goal all people must have similar opportunities and since we aren't there yet, the issue is how much we give special attention to race and gender so we can eventually arrive at a time when we need not worry about such issues?
Boy is this a sticky wicket
Hard to deny the reasoning
DeleteWhy is diversity always and only about race and gender? Hispanics, whites, and African Americans are diverse within themselves so why not sub divide them: Africans, Islanders, etc. And you could divide Hispanics one hundred different ways. And what about Irish, German, Italians, or Orientals? Why not keep a "scorecard" on them as the DBR does every year? The whole thing is absurd and anti egalitarian. But that is how the ruling elite in our society wants it to be. If we really want to put an end to this non sense, start holding the NBA to the same rules we apply to colleges and businesses and the government: once mandating that each team have a proportionate number of white players as are in the population, this racial identity business will end very fast.
ReplyDeleteI wholeheartedly agree ; filling a vacancy based upon race and gender is inappropriate. There is no shortage of black, female judges in the judicial system.
ReplyDelete
ReplyDeleteTHE CAPTAIN REPORTS:
BROWEIRD ..............
ASA Tony Loe and Criminal Defense Attorney Teresa Williams, (she is a Past President of BACDL and ran against State Attorney Michael Satz in the most recent election), faced off in an Attempted Murder trial recently.
You are invited to go to the Broward Clerk web site and read the most recent pleading, A Motion For Mistrial, in the case of State v. Rodney Squire, Case Number 17000688CF10A. The Motion was filed on 10/10/17 and can be read, for free, on the clerk's web site. (Yes, you can do that in Broward).
If the allegations are all true, and we have no reason to believe they are not, then Tony Loe, a veteran prosecutor in that office, should be ashamed of himself for the actions he took in this case. Emailing Amended Discovery to defense counsel, on the morning of trial, when the ASA and Defense Counsel are in Court about to pick a jury, and not telling the Court or defense counsel, that your secretary at the SAO just sent the email listing a critical witness for the State, well, that is just completely unacceptable conduct.
Cap Out .....
Captain4Justice@gmail.com
Rumpole, while your commentary is very well taken, it's really not the situation that this governor has been faced with. He’s not looking at African American female candidates that are not qualified, or less qualified than their counterparts. Ayana Harris has applied to the Circuit Court bench some 6 or 7 times. She has been sent to the governor’s office EVERY SINGLE TIME she has applied. Think about that. She has beat out sitting judges for a spot on the short list. I’ve been watching very closely over the years and at times she has been the only woman, only African American, or only non-judge on a slate sent to him. He’s obviously not passing her over because she’s unqualified. Undoubtedly, he’s passing her over based on her career as a public defender and what I’m guessing is her likely party affiliation. Tanya Brinkley is also extremely qualified, and has been overlooked several times as well. So while I can appreciate your commentary, in this case there are actually very qualified African American women applying for judgeships that the governor is looking over, not applicants who slightly pale in comparison to their counterparts. Brinkley is a sitting judge so I understand that her path to the Circuit bench would almost certainly have to be through appointment, but I hope Ayana decides to run for election because I think she’d receive strong backing in the community just like she has from the JNC.
ReplyDeleteI put down my review of the movie on the life of Thurgood Marshall to read your blog and it hit me. Turning black lawyers into black judges is a waste of lawyers. I think we can all agree that Marshall changed our world for the better, but the question is, how? He effected change as a litigator, not as a Justice.
ReplyDeleteI would submit that it was through his work as a lawyer that Marshall effected change. He wrote the majority opinion in cases such as Stanley v. Georgia, Bounds v. Smith, Teamsters v. Terry, and Cottage Savings Ass'n v. Commissioner, important but not that important. That was work anybody could have done. Brown vs. Board of Ed. changed the world. Thurgood Marshall’s legacy was as an attorney, not as a Justice. His legal work as a advocate was far more important than his work as an impartial.
If we had a ton of black lawyers, then maybe we could justify taking a few of them out of commission to be judges. However, there are too few to waste. Taking a precious black lawyer, whose work is important and necessary, and turning her into a judge is a waste of a lawyer.
Most lawyers want good judges, and there are value judgments which are made with each selection. But there comes a point when you have to ask, why are there so few African
ReplyDeleteamerican judges appointed? Brian is simply pointing to an extremely qualified applicant
who keeps being passed over.
Qiestion for the poster above- should the circuit court still have Peter Camacho Adrian as a judge just because of his race? Let's look at qualifications and performance rather than just argue that someone should be appointed and or retained simply because their race. That's a myopic view and by all accounts is completely ridiculous.
ReplyDeleteRumpole,
ReplyDeleteOne thing to make your wicket stickier is that, having been raised in a society that is both racist and sexist, most of us have those biases, even if we're unaware of them. I believe a diverse bench is better for judicial decision-making, for reasons Justice Sotomayor explained during her confirmation hearing. But I also believe a diverse bench represents affirmative action in action: that we haven't rejected women and people of color simply because of those traits. We were all raised in a sexist and racist society. It is almost impossible to escape the impacts of our culture, we have internalized them even if we don't know it. The point of affirmative action is not to create diversity, but to work around these unconscious impacts in making decisions that have subjective components.
As you say, we can't rate judicial competence "scientifically." We don't even have objective criteria for electing judges. One candidate may seem "smarter," another may seem to have a "better temperament," one seems to have more "relevant" experience, another a "better reputation." But these are all subjective criteria, prone to influence by unconscious bias. Whenever I hear a chorus of your readers decrying over-representation by Hispanic women, I wonder whether bias is at work. (Especially because your readers often use demeaning words, like "girl," or "mommy" to make their point.) Think about it: when's the last time your readers complained about over-representation by Hispanic men? Or by white men?
Black women have two strikes against them, in terms of internalized bias. The fact that there are none on the Circuit Court bench is striking evidence of under-representation. Of course, one could say there are no black female candidates who merit selection. But that isn't true. Ayana Harris is highly experienced, very intelligent, with a great temperament for the bench.
We have no affirmative action program for reducing the impacts of race and gender bias on judicial selection. But I think we have an affirmative obligation, as products of a racist and sexist culture, to consider race and gender in this context, to neutralize their influence on us, and to neutralize their influence on judicial decisionmaking.
Since McKleskey v. Kemp, we have not been allowed to rely on statistical evidence to show bias in judicial (or prosecutorial) decision-making. In that case, unimpeachable logistic regression analysis established that a black person who killed a white person was 4 times more likely to be sentenced to death than a white person who killed a black person, all other factors being equal. The Court said you have to present direct not statistical evidence of racial bias. As if a judge or prosecutor would admit, or even know, that they were motivated by racial bias. But you can't be in the REGJB without seeing evidence of bias everywhere you look, as if the ghosts of those segregated water fountains stalked the halls.
"Undetermined value" of being a mariel boatlift refugee? Gimme a break I don't even think you believe that it's so absurd. It doesn't mean a thing about how she'd be as a judge. Being a good judge is about intellect, temperament, empathy, etc, as in actual qualifications. I may have those qualities because I was a mariel refugee, or I may have them from having a perfectly boring Midwest childhood. Who cares the source of the qualities? There is no undetermined value of simply being a mariel refugee as far as judging....the value is totally determined at nil.
ReplyDeleteKissimee Kid- you don't need to convince me, of all people, that lawyers are 100X more valuable than judges. Sheesh.
ReplyDeleteNot sure Ayana should run in an election. Ask Shirlyon Mcwhorter how that worked out.
ReplyDeleteI hope that Kissimee Kid (KK, who I'm guessing is white) is not suggesting we vote against Black judicial candidates to make sure they remain lawyers, because he thinks Marshall was a better litigator than justice. While he may intend this to be benign, it is not.
ReplyDeleteMost judges are judges because they can not make it in private practice. Judge Hanzman and very few others are the exceptions
ReplyDeleteYou can talk about qualifications, color, sex and all that until the cows come home. But first and foremost will be political affiliation.
ReplyDeleteDo governors in Florida typically only appoint judges perceived to be sympathetic to their political party? Is Ms. Harris a republican? Just curious how the process typically works. If it's all party line and Ms.Harris is a democrat, why would a republican governor ever appoint her?
ReplyDeleteAre we really at all surprised that a Republican Governor didn't appoint a former state and current Federal public defender to the bench? I am no fan of this Governor but is anyone on this blog really stupid enough to think that she would have been appointed to the bench if she were white? and spare me the fact that Cuesta was a PD, she ran for county, won, and people have had years to evaluate her on the bench.
ReplyDeleteI can not think of a single Rick Scott appointment of a former PD directly to the bench. He has appointed Lourdes Simon, who was a former PD but was a Judge for a long time with a great reputation before she got appointed. most of his picks have been former prosecutors. is this surprising?
also one of the last appointments to the county bench was a African American female. The governor appointed Rodney Smith and Darrin Gayles, two African-American former prosecutors to the bench.
And whats really interesting is that no one is complaining about these two appointees because they both have excellent reputations and are qualified.
so all this is some attempt to say the governor is racist because he didn't appoint a Public Defender to the bench?
if you are all looking for some kind of outrage about racism--look elsewhere--its all over the place--just has nothing to do with these two well deserved appointments
Judge Melvia Green left the Third District in 2008. It has had no african american appointments since and is an all white court. What does this say to the public, and
ReplyDeleteare you saying there are no qualified african americans available for such position?
Who has applied?
DeleteMango's go-cup in road blocking Alton Rd and 8th Street. #comebackkid #griecolovesyou
ReplyDeleteDear Saturday, October 14, 2017 11:29:00 AM;
ReplyDeleteNo, I am not suggesting we vote against Black judicial candidates to make sure they remain lawyers. I am suggesting potential Black judicial candidates shouldn’t run and remain lawyers. If a Black lawyer is at the end of his career; lost the desire to fight for justice; and wants to retire in a position with a moderate paycheck where he can no longer effect social change, by all means, run for judge.
If a Black man or woman with a law degree wants to make the world a better place, to reverse Florida’s systemic racism, and bring the blessings of liberty to all people, the bar is the place to be, not the bench. Marshall was a better at effecting change as a litigator than he was as a justice. If you try a case, and find black folks sitting in the box, it is not because of anything Justice Marshall did; it is because a lawyer, Thurgood Marshall, litigated a case for a client. It was lawyer Marshall who kept the Miami police from coercing confessions, not Justice Marshall.
Black judges can’t do squat for black folks; if they did, they shouldn’t be judges. You can’t be in the tank for one party and be a judge. A lawyer, on the other hand, can. If you are happy with the status quo, and want to preserve it, run for judge. If you want to effect change . . .
"Black judges can’t do squat for black folks; if they did, they shouldn’t be judges."
DeleteYou have no idea. Maybe you're a minority but I doubt it. You have no idea what it's like to grow up as a minority and see every judge in real life or in the media portrayed as a silver haired white man.
You have every right to your opinion. But, to think that minorities don't appreciate seeing a similar face or one who can pronounce an ethnic name correctly, is just plain wrong. Of course, that's just MY opinion.
You strike me as the kind of person who thinks more of himself because he supports affirmative action. I think I knew you in college. You were the one who turned to me and smiled and said, "You seem too small to play a sport...."
10/14 @ 11:29 responding to KK (now I'm 10/16 @ 1:24 pm CT):
ReplyDeleteI understand your point perfectly. I don't necessarily agree that a judge can't fight for justice. I believe, for example, that FSC Justice Pariente, former 11th Cir. Judge Barkett, USSC Justice Ginsberg fight for justice by having a relatively expansive view of the Bill of Rights. But, whatever one thinks of the role of judges in fighting for justice, I don't think it's the role of white people to tell black people what's best for "black folks."
I also think that white people have a hard time owning and corraling their racial bias. That makes it hard for them to see black people as equals, to identify with black kids the way they do with white kids. And judges have discretion in various matters, which could be exercised in a bias-inflected way. Our justice system is corrupted by unconscious bias. If I were a black defendant, I would feel more likely to get justice before a black judge. As a lawyer who defends many black clients, I prefer to litigate before a black judge, all else being equal, not because the judge will be biased in favor of my client, but because s/he won't be biased against my client. Clearly there are notable exceptions to this rule -- Clarence Thomas comes to mind.
"I also think that white people have a hard time owning and corraling their racial bias."
ReplyDeleteRespectfully sir, you are a racist, quite ironically.
Too bad. Was hoping Brinkley got it so she would get out of DV. Really not a good fit for her and her bullied staff. Only Altfield is worse. People should look into his handling of former NFL player Dimitri Patterson's criminal case. Totally botched a Rule to Show Cause and a Direct Criminal Contempt. He's still trying to figure it out. Just a disaster. Ask Mark Eiglarsh.
ReplyDeleteWe need a newly composed committee of one to make our judicial selections. That one person should be no other than Dan Lurvey.
ReplyDeleteDear Anonymous;
ReplyDeleteWe have a limited number of black lawyers. Many of them are out fighting the good fight, battling for racial equality, opposing systemic racism, and preventing injustice. They are doing vital work, and because our system of legal education is itself racist, there are not as many black lawyers as there should be. You want to take these lawyers out of the game and put them on the bench just so some other blacks can “appreciate seeing a similar face.” Wah!
Take the black lawyer out of the pit and put him on the bench and you’ve lost someone fighting for justice. Some poor black fellow who would have had a motivated advocate now gets shuffled off to prison, but, hey, at least the judge who sent him there had a “similar face.” He could have had a silver-haired racist say, “with that not guilty verdict, boy, you are free to go,” but, we pulled that advocate out of the game and benched him.
And, what about our black lawyer. We all know Florida’s criminal justice system is systemically racist. Our black judge can’t change that. Should he rig cases for black guys? It seems to me that the kind of person who would work to become a judge might have a problem with that kind of bias. They make judges swear an oath to be fair and impartial. That excludes the notion of being in the tank for the darker-skinned litigant. What if our judge is 10/16 @ 1:24 pm? He seems like the kind of person who would take the oath of office seriously. How is a person like that going to throw cases? I don’t think he would. So, if you take a person like that out of the trenches, haven’t you neutered him? (And, isn’t a further problem that if you are a black judge in a systemically racist system, aren’t you just as bad as the white judges in the same system?)
And while I’m on 10/16 @ 1:24 pm, it is the role of white people to tell black people what's best for "black folks." It is equally the role of black people to tell white people what’s best for white folks. Black people and white people are all people. What’s best for “black folks,” is that bigotry and prejudice and malicious and inhuman self-interest be replaced by understanding and tolerance and good-will. That’s what is best for white folks too.
If we all could just admit
ReplyDeleteThat we are racist a little bit
Even though we all know that it's wrong
Maybe it would help us get along
KK,
ReplyDeleteYou make this statement: "it is the role of white people to tell black people what's best for "black folks." It is equally the role of black people to tell white people what’s best for white folks." I don't buy into this equivalence. I think people who have experienced centuries of dominance should not tell people who have endured centuries of subjugation what is good for them. It's an expression of dominance behind a smiling mask. I think it is the role of white people to assist in struggles for equality led by people of color. For the same reason, I don't think men should tell women what jobs they should take for the sake of their gender. It may be well-intentioned but it wouldn't be well-received because women are individuals, not representatives of their gender. Bias is the tendency to see a person as representing a group.
I like Jeff Marx' verse.
African Americans are an essential part of our community, there are many African American lawyers, both men and women, with the qualifications for the bench and the governor should at least be cognizant that a judiciary that reflects the community is good for all of us. This was an important consideration for Jeb. If the governor isn't going to appoint qualified African Americans then he guarantees that they won't support him or his party.
ReplyDeleteYou know, we are probably on the same side, so, I guess were are in the old left-wing battle where folks who are basically in agreement fight each other to the death. I'm not going to make the claim, that the right-wing loves to make, that there is no more racism. (I live in rural Florida. We have Klansmen - actual, meeting-going, hood-wearing Klansmen.) But, there are no people alive who "have experienced centuries of dominance," or living people who have "endured centuries of subjugation." If there were, the title would not go to the Blacks, it would rest in the hands of the Irish, who had centuries of subjugation before Europeans even found Africa.
ReplyDeleteSo, if you are a rich old black lawyer, by all means, retire to the bench with all the rich old white lawyers. But, if you are a black man or woman with a law degree; use it, don't waste it. You can retire to the bench when you are done changing the world for the better.
Oct. 14 @ 4:03 pm, I don’t think anyone was saying that these two appointments weren’t deserved. That wasn’t the point at all. And what does someone’s having been a public defender have to do with whether they’re qualified for a judicial appointment?? So is your position that Scott can absolutely appoint former prosecutors directly from their position as a prosecutor, but if a person has been a public defender they first have to be a judge so people can evaluate them on the bench? If that’s the case, why doesn’t it go for the former prosecutors he's appointed?
ReplyDeletekk,
ReplyDeleteI'm sure you're right, that we probably have more in common than not. But I believe that black people in America continue to experience subjugation by white people. Slavery, to violence during reconstruction, to klan violence (often by police officers who wore hoods in their off-hours), to jim crow, to the incarceral state. Many black people are not allowed to vote because they were arrested and convicted of offenses that white people commit without consequence. They are much more likely to live in substandard areas with substandard schools, to be disciplined by school police, arrested as juveniles, and discriminated against more than ever, now that white people at the highest levels of government have decided they are color-blind.
I completely understand your point about being a litigator v. being a judge. Our disagreement may have more to do with style than substance. In my view, when it comes to a subjugated minority, style is real important.
Nice debate. I give the match to the white guy. Friday, October 20, 2017 10:40:00 AM forgets that a judge on the bench is going to rule in favor of the status quo more often than not. (Of course Scott isn't going to appoint qualified minorities: what party of the Republican modus operandi don't you understand?)
ReplyDelete