Judge Wendy Williams Berger is not a stranger to the art of judging, having been a state judge in Florida for the last thirteen years. Berger, who served as an aide under Gov. Jeb Bush, looks favored to take a lifetime appointment on the Florida federal bench.
Background
Berger was born Wendy Leigh Williams on December 1, 1968 in Athens, Georgia. Berger graduated cum laude from Florida State University in 1990 and from the Florida State University College of Law in 1992.[1] After graduating, Berger joined the Office of the State’s Attorney for the Seventh Judicial Circuit in St. Augustine.[2]
In 2001, Berger joined the Office of Governor Jeb Bush as Assistant General Counsel and a Clemency Aide.[3] She held that position until she was appointed in 2005 to be a Circuit Judge on the Seventh Judicial Circuit.[4] In 2012, Gov. Rick Scott elevated Berger to be on the Fifth District Court of Appeal.[5] She holds that position today.
In 2016, Berger was one of three finalists for an appointment to the Florida Supreme Court to the seat vacated by Justice James Perry.[6] Scott ultimately chose to elevate Judge C. Alan Lawson, her colleague.
History of the Seat
Berger has been nominated to a seat on the U.S. District Court for the Middle District of Florida. This seat opened on June 3, 2015, when Judge John Steele moved to senior status. On April 28, 2016, U.S. Magistrate Judge Patricia Barksdale was nominated by President Obama to fill this vacancy. However, even though Barksdale had the support of both Democratic Senator Bill Nelson and Republican Senator Marco Rubio, the Senate did not take any action on her nomination.
In early 2017, Nelson and Rubio urged Trump to renominate Barksdale and two other unconfirmed Obama picks in Florida.[7] While Trump renominated one of the candidates, William Jung, Barksdale was not renominated.
In October 2017, Berger applied for the judgeship with the Judicial Nominating Commission (JNC) set up by Nelson and Rubio.[8] She was interviewed by the JNC and was selected as a finalist in December 2017.[9] After interviews with Nelson, Rubio, and the White House, Berger was nominated on April 10, 2018.
Legal Experience
Berger started her legal career as a Florida state prosecutor. In this role, Berger tried approximately 50 trials, ranging from misdemeanors to capital cases.[10] Notably, Berger prosecuted Tanya Hudson for the death of her baby, successfully obtaining two manslaughter convictions.[11] For her part, Hudson argued that her baby was stillborn and that she had never intended to kill the child.[12]
In 2001, Berger joined the Office of Gov. Jeb Bush, advising him on legal issues and serving as his clemency aide. In this role, Berger advised Bush on clemency petitions, monitored death row cases, and prepared death warrants for the Governor’s signature.[13]
Jurisprudence
Berger served as a Circuit Judge for Florida’s Seventh Judicial Circuit from 2005 to 2012, where she handled approximately 200 cases, including around 60 jury verdicts.[14] Since 2012, Berger has served on the Fifth District Court of Appeal.
In the course of Berger’s time as an appellate judge, she has been reversed by the Florida Supreme Court in approximately 15 cases.[15] Similarly, Berger has been reversed 17 times during her tenure as a trial judge.[16] Judging against the panoply of cases she has handled, this means that Berger’s rulings have been reversed in approximately 8-10% of her cases, a slightly higher level of reversal than other nominees profiled on this blog.
Overall Assessment
As Berger has served on the Florida state bench with little controversy over the past thirteen years, there seem to be few barriers to her successful confirmation. Furthermore, Berger has the support of the Judicial Nominating Commission set up by Rubio and Nelson. Even as Nelson is no longer in the Senate, this should help Berger gain a comfortable confirmation. Nevertheless, we may see some questions raised about Berger’s prosecution of Hudson. Nonetheless, while the Hudson case is controversial, it is unlikely to derail Berger’s confirmation entirely.
[1] Sen. Comm. on the Judiciary, 114th Cong., Wendy Williams Berger: Questionnaire for Judicial Nominees 1.
[2]Id. at 2.
[3] See id.
[4] In Brief, Daytona Beach News Journal, Apr. 29, 2005.
[5] Judge Berger Appointed to State Court of Appeal, Florida Times-Union, Aug. 22, 2012.
[6] Frank Fernandez, 2 Judges from Daytona Appeals Court Finalists for State Supreme Court, Daytona Beach News Journal, Nov. 29, 2016.
[7] Andrew Pantazi, Rubio, Nelson Urge Trump on 3 Judges, Florida Times-Union, March 24, 2017.
[8] See Berger supra n. 1 at 61-62.
[9] See id.
[10] See id. at 49.
[11] See Hudson v. State, 745 So. 2d 1014 (Fla. 5th DCA 1999); Hudson v. State, 792 So. 2d 474 (Fla. 5th DCA 2001).
[12] Alexa Jaworski, Convicted Baby Killer Pleads For a New Life: Tanya Hudson Seeks to Overturn Verdict, The Florida Times Union, June 8, 2001, https://www.questia.com/newspaper/1G1-75408721/convicted-baby-killer-pleads-for-a-new-life-tanya.
[13] See Berger supra n. 1 at 47-48.
[14] Id. at 16.
[15] See, e.g., Burton v. State, 191 So. 3d 543 (Fla. 5th DCA 2016), quashed by Burton v. State, No. SC16-1116, 2018 WL 798521 (Fla. Feb. 9, 2018); Churchill v. State, 169 So. 3d 1260 (Fla. 5th DCA 2015), quashed by 219 So. 3d 13 (Fla. 2017); Florence v. State, 128 So. 3d 198 (Fla. 5th DCA 2013), disapproved by Weatherspoon v. State, 214 So. 3d 578 (Fla. 2017); State v. Myers, 169 So. 3d 1227 (Fla. 5th DCA 2015), quashed by 211 So. 3d 962 (Fla. 2017); Worley v. Cent. Fla. Young Men’s Christian Ass’n, 163 So. 3d 1240 (Fla. 5th DCA 2015); Hilton Hotel Corp. v. Anderson, 153 So. 3d 412 (Fla. 5th DCA 2014), quashed by Anderson v. Hilton Hotel Corp., 202 So. 3d 846 (Fla. 2016).
[16] See Biller v. State, 109 So. 3d 1240 (Fla. 5th DCA 2013), disapproved by Smith v. State, 204 So. 3d 18 (Fla. 2016); Leatherwood v. State, 108 So. 3d 1154 (Fla. 5th DCA 2013); Lee v. State, 89 So. 3d 290 (Fla. 5th DCA 2012); Long v. State, 99 So. 3d 997 (Fla. 5th DCA 2012); McKinnon v. State, 85 So. 3d 1188 (Fla. 5th DCA 2013); Rose v. State, 68 So. 3d 377 (Fla. 5th DCA 2011); Wilbur v. State, 64 So. 3d 756 (Fla. 5th DCA 2011); Gonzalez-Ramos v. State, 46 So. 3d 67 (Fla. 5th DCA 2010); Allen v. State, 43 So. 3d 874 (Fla. 5th DCA 2010); Outin v. State, 12 So. 3d 322 (Fla. 5th DCA 2009); Eberhardt v. State, 5 So. 3d 783 (Fla. 5th DCA 2009); Helms v. State, 993 So. 2d 1135 (Fla. 5th DCA 2008); McCauslin v. State, 985 So. 2d 558 (Fla. 5th DCA 2008); Lawrence v. State, 991 So. 2d 406 (Fla. 5th DCA 2008); Sadler v. State, 980 So. 2d 567 (Fla. 5th DCA 2008); Dasher v. State, 956 So. 2d 1209 (Fla. 5th DCA 2007); Infinity Design Builders v. Hutchinson, 964 So. 2d 752 (Fla. 5th DCA 2007).
The Vetting Room 