Middle District of Florida

Kathryn Kimball Mizelle – Nominee to the U.S. District Court for the Middle District of Florida

Kathryn Kimball Mizelle has the distinction of being the youngest federal judicial nominee since Alex Kozinski was tapped to the U.S. Claims Court in 1982.  Despite sterling academic credentials, senators may question if Mizelle, who has spent only four years in practice, has the experience to serve as a federal judge.

Background

Mizelle, born Kathryn Kimball, graduated summa cum laude from Covenant College in 2009 and then from the the University of Florida Levin College of Law in 2012, graduating top of her class.[1]  After graduating, Mizelle clerked for Judge James Moody on the U.S. District Court for the Middle District of Florida and then for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.[2]

After her clerkships, Mizelle joined the U.S. Department of Justice Tax Division, while also serving as a year as a Special Assistant U.S. Attorney in the Eastern District of Virginia.[3]  In 2017, Mizelle left to serve as Counsel to Assistant Attorney General Rachel Brand and then to clerk for Judge Gregory Katsas on the U.S. Court of Appeals for the D.C. Circuit.[4]  She followed it up with a clerkship with Justice Clarence Thomas on the U.S. Supreme Court.

Since 2019, Mizelle has served as an Associate in the Washington D.C. and Miami offices of Jones Day.

History of the Seat

While Mizelle’s nomination has not been formally submitted to the Senate yet, she is expected to be nominated for the seat vacated on July 12, 2020, when Judge Virginia Hernandez Covington moved to senior status.

Legal Experience

Eight years out of law school, Mizelle has spent approximately half her legal career as a law clerk, assisting federal judges on the district, appellate, and supreme court level.  The remaining four years of legal experience Mizelle has includes her time at the Tax Division of the Department of Justice, the U.S. Attorney’s Office, the Assistant Attorney General’s Office, and at Jones Day.  On the course of this time, Mizelle has tried two jury trials to verdict.[5]

Most of this litigation experience is from Mizelle’s year as a Special Assistant U.S. Attorney.  For example, during this time, Mizelle was one of the attorneys who handled a drug distribution prosecution.[6]  She was also lead attorney on the prosecution of Dujuan Thomas for conspiracy to distribute cocaine.[7]

Speeches

A member of the Federalist Society, Mizelle spoke on her clerkship with Justice Thomas at the 2020 Florida Chapters Conference of the Society.[8]  In her speech, Mizelle spoke approvingly of Justice Thomas’ jurisprudence and described him as the “greatest living American.”[9]  Mizelle also suggested that descriptions of Justice Thomas as a “bloodthirsty originalist” was complimentary.[10]

More controversially, Mizelle noted, in an offhand comment, that she believed that “paper money” was unconstitutional under the Coinage Power.[11]  This view, popular in fringe conservative circles, is explicitly contravened by the Supreme Court’s decisions in Knox v. Lee[12] and Parker v. Davis, which have affirmed the constitutionality of paper money.

Overall Assessment

Mizelle is undoubtedly very intelligent, with excellent academic credentials.  However, senators may reasonably question whether a 33 year old attorney who has only practiced law for four years has the requisite level of experience to serve in a lifetime appointment on the bench.  Additionally, Mizelle is likely to draw questions about her views on the constitutionality of paper money, and critics may argue that her views are out of the legal mainstream.  Given her youth, relative lack of experience, brief window to confirmation, and controversial statements, Mizelle is likely to have a tough confirmation.  Nonetheless, if Republicans stick together and prioritize the nomination, they may squeeze it through before the end of the year.

[1] Paige Fry, UF Alumna Makes History As First Supreme Court Clerk From Levin, Independent Florida Alligator, Sept. 15, 2016.

[2]See Kathryn Kimball Mizelle, Linkedin Profile, https://www.linkedin.com/in/kathryn-kimball-mizelle-a47196185/ (last visited Sept. 7, 2020).

[3] See id.

[4] Id.

[5] See Sen. Comm. on the Judiciary, 116th Cong., Kathryn Kimball Mizelle: Questionnaire for Judicial Nominees 17.

[6] See United States v. Major, 198 F. Supp. 3d 558 (E.D. Va. 2016).

[7] See Thomas v. United States, 2015 U.S. Dist. LEXIS 148492, Criminal Action NO. 1:13-cr-00135 (E.D. Va. Oct. 28, 2015).

[8] Colin Kalmbacher, Trump Nominates Former Clarence Thomas Clerk Who Graduated Law School in 2012 to Lifetime Judgeship, Newstex Blogs, Aug. 12, 2020.

[9] See id. (quoting Kathryn Mizelle).

[10] See id.

[11] See id.

[12] 79 U.S. 457 (1871).

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Judge John Badalamenti – Nominee to the U.S. District Court for the Middle District of Florida

A longtime public defender, Judge John Badalamenti is President Trump’s fourth nominee to the U.S. District Court for the Middle District of Florida.

Background

The 45-year-old Badalamenti received a B.A. in Criminology and an M.A. in Sociology from the University of Florida.[1]  Badalamenti then received his J.D. from the University of Florida Levin College of Law, after which he joined the U.S. Attorney General’s Honors Program, where he was placed with the Federal Bureau of Prisons in Atlanta.[2]

After his time with the Honors Program, Badalamenti clerked for Judges Frank Hull and Judge Paul Roney on the U.S. Court of Appeals for the Eleventh Circuit before joining the Federal Public Defender’s Office for the Middle District of Florida.[3] 

In 2015, Badalamenti was appointed to the Second District Court of Appeal in Florida by Governor Rick Scott.  He still holds the judgeship.

History of the Seat

Badalamenti has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on December 14, 2018, when Judge Elizabeth Kovachevich moved to senior status.  

Badalamenti was one of four finalists nominated for this court by the Judicial Nominating Commission (JNC) set up by Florida Senators Bill Nelson and Marco Rubio in December 2017.[4]  Badalamenti was formally nominated on February 4, 2020.

Legal Experience

Badalamenti has most of his pre-bench career as a federal public defender, an unusual background for a judicial nominee, particularly one in a Republican administration.  In his role as a federal public defender, Badalamenti practiced before the U.S. Court of Appeals for the Eleventh Circuit, as well as the U.S. District Court for the Middle District of Florida.  For example, in one case, Badalamenti successfully got the sentences of his client reversed on the grounds that a prior conviction for carrying a concealed weapon should not be considered a “violent” crime for sentencing enhancement.[5] 

However, Badalamenti’s most notable case was Yates v. United States, which he argued before the U.S. Supreme Court.[6]  In the case, his client was caught catching grouper that were too small to fit under federal regulations, and subsequently disposed of the small fish before federal authorities could inspect the catch.[7]  Yates was prosecuted and convicted for destruction of evidence under a provision in the Sarbanes-Oxley Act that criminalized destroying “tangible objects” while impeding federal investigations.[8]  Ultimately, the Supreme Court, in a 5-4 ruling, agreed with Badalamenti that the Sarbanes-Oxley charges were improper.[9]  The ruling cut across ideological lines with Justice Ruth Bader Ginsburg writing the opinion striking down the conviction, which was joined by Chief Justice John Roberts, and Justices Stephen Breyer, Samuel Alito, and Sonia Sotomayor.[10]  Meanwhile, Justice Elena Kagan dissented, joined by Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas.

Judicial Experience

Badalamenti served as an appellate judge in Florida since 2015.  In this role, Badalamenti serves as an intermediate appellate judge, reviewing criminal and civil appeals from the county courts and the circuit courts.  

Among his most notable cases while sitting as an appellate judge, Badalamenti joined an opinion finding that the state of Florida needed to reimburse Lee County homeowners for cutting down healthy citrus trees, an act committed to slow down the spread of citrus-canker disease.[11]  Badalamenti agreed with the trial court that the Takings Clause of the Florida Constitution required repayment even where the repayment had not been authorized by the Florida legislature.[12]

Overall Assessment

Much ink has been spelled on the relative paucity of public defenders on the federal bench compared to prosecutors, and the brutal campaign against Judge Jane Kelly, another former public defender, during her brief consideration for the Supreme Court helps explain why that gap exists.  

Nonetheless, public defenders perform an important constitutional duty in the criminal justice process.  Given his support from Trump and Florida’s Republican senators, Badalamenti should be able to avoid any negative comment from his work.

[1] Florida Second Circuit Court of Appeal, Judge John L. Badalamenti, Biography (available at https://www.2dca.org/Judges/Judge-John-L.-Badalamenti),

[2] Id.

[3] Id. 

[4] Fellow nominees Thomas Barber and Wendy Berger were also finalists.

[5] United States v. Canty, 570 F.3d 1251 (11th Cir. 2009).

[6] See 135 S. Ct. 1074.

[7] See Robert Barnes, Justices Tackle the Case of the Missing Grouper: Federal Prosecutors Used a Portion of the Law to Tackle a Commercial Fisherman Who Threw Some Back, Wash. Post, Nov. 5, 2014.

[8] See In re Rosemary Frost, Case No. 2001-1954 (Fla. Cir. Ct. 2001).

[9] Supreme Court: One Fish, Two Fish, Red Fish, Blue Fish, CNN Wire, Feb. 25, 2015.

[10] See id.

[11] See Jim Saunders, Court Says State Should Pay in Citrus Fight, The News Service of Florida, Nov. 13, 2019, https://cbs12.com/news/local/court-says-state-should-should-pay-in-citrus-fight.

[12] See id.

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Judge Wendy Williams Berger – Nominee for the U.S. District Court for the Middle District of Florida

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).

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Judge Thomas Barber – Nominee for the U.S. District Court for the Middle District of Florida

A well-respected state court judge in Florida, Judge Thomas Barber is a fairly uncontroversial choice for the federal bench.

Background

Thomas Patrick Barber was born on December 1, 1966 in Pittsburgh, Pennsylvania.  Barber graduated from the University of Florida in 1989 and from the University of Pennsylvania Law School in 1992.[1]  After graduating, Barber joined the Tampa office of Carlton Fields P.A. as an Associate.

In 1997, Barber became a state prosecutor at the State’s Attorney’s Office, and, after two years, became an Assistant Statewide Prosecutor with the Florida Attorney General’s Office.[2]  In 2000, Barber moved back to Carlton Fields, becoming a Partner in 2002.[3]

In 2004, Barber was appointed to be a County Court Judge for the Thirteenth Judicial Circuit.[4]  He was elevated to be a Circuit Judge in 2008.  He still holds the judgeship.

History of the Seat

Barber has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on August 29, 2017, when Judge James Whittemore moved to senior status.

Barber was one of four finalists nominated for this court by the Judicial Nominating Commission (JNC) set up by Florida Senators Bill Nelson and Marco Rubio.[5]  Barber was formally nominated on May 7, 2018.

Legal Experience

Barber has spent his entire pre-bench career either at the firm of Carlton Fields or as a state prosecutor.  Over the course of his career, Barber has tried approximately seventy cases, including approximately twenty jury trials.[6]

Among the highlights of his career, Barber helped prosecute the leaders of a theft ring that stole baby formula from Florida drug stores for resale in Texas.[7]  The case, which ended with a 76-month prison sentence for the ringleader, revealed links between the operation and the funding for the 1993 terrorist attacks at the World Trade Center.[8]  In other matters, Barber represented a whistleblower who uncovered numerous improprieties at the Florida Department of Health & Rehabilitative Services[9] and represented a family in supporting an elderly patient’s right not to receive skin graft procedures in accordance with her living will.[10]

Judicial Experience

Barber served as a County Judge in Florida from 2004 to 2008 and has served as a Circuit Judge since 2008.  In this role, Barber handles civil cases involving more than $15000 and felony prosecutions.  Over the course of his career, Barber has handled approximately 700 cases.[11]  Among his more prominent cases, Barber ruled that the new Florida “stand your ground” law could not apply to cases currently pending when the law passed.[12]

Over the course of his judicial career, Barber has been reversed approximately thirteen times.  For example, Barber was reversed in two cases for granting motions to dismiss on behalf of criminal defendants.[13]

In one notable case, Barber granted a motion to suppress evidence, finding that the warrant was based on information based on an officer’s nonconsensual entry into a backyard.[14]  The Florida Court of Appeals for the Second District reversed, finding that the affidavit supporting the warrant still met the probable cause requirement without the officer’s personal observations.[15]

Overall Assessment

Looking at Barber’s record overall, senators are unlikely to find his nomination controversial.  His judicial record reflects a relatively low rate of reversal and does not suggest a bias towards either prosecutors and defendants.

However, Barber was among a group of nominees who received his hearing during the October recess, when Democrats were not present.  As such, unless Barber is given a second hearing, he may get some votes against him from Democrats who are protesting their lack of input in the confirmation process.  Barber may also receive questions regarding his ruling limiting the scope of Florida’s “stand your ground” law and for his work representing an elderly woman’s “right to die.”

Nevertheless, Barber faces a strong likelihood of a bipartisan support next year, and will likely be confirmed in due course.

 

[1] Sen. Comm. on the Judiciary, 114th Cong., Thomas P. Barber: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 46.

[6] See id. at 36.

[7] William R. Levesque, 3 Receive Probation in Baby Formula Theft Ring, St. Petersburg Times, Aug. 25, 1999.

[8] See Barber, supra n. 1 at 37.

[9] See Irven v. Dep’t of Health & Rehab. Servs., Case No. GC-G-95-2652 (Fla. Cir. Ct. 1997).

[10] See In re Rosemary Frost, Case No. 2001-1954 (Fla. Cir. Ct. 2001).

[11] See Barber, supra n. 1 at 14. 

[12] State v. Smith, 16-CF-007477 (Fla. Cir. Ct. 2017).

[13] See State v. Ramirez, 198 So.3d 52 (Fla. App. 2d. 2015); State v. Codore, 59 So.3d 1200 (Fla. App. 2d. 2011).

[14] State v. Rodriguez, 56 So. 3d 848 (Fla. Ct. App. 2d. 2011).

[15] See id.

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William Jung – Nominee to the U.S. District Court for the Middle District of Florida

It is not uncommon for unconfirmed nominees at the end of a president’s term to be renominated by a future president and then confirmed.  However, William Jung is unique as a nominee to have been renominated by two presidents of different parties only to see both nominations fail.  Now, Jung has been nominated by a third president and has to hope that the third time’s the charm.

Background

William Frederic Jung was born on March 29, 1958 in Fort Belvoir, Virginia.  Jung graduated magna cum laude from Vanderbilt University in 1980 and summa cum laude from the University of Illinois College of Law in 1983.  After graduating, Jung clerked for Judge Gerald Bard Tjoflat on the U.S. Court of Appeals for the Eleventh Circuit and for then-Associate Justice William Rehnquist on the U.S. Supreme Court.[1][2]

While most Supreme Court clerks parlay their clerkships into D.C.-based positions at large law firms, Jung instead joined the Tampa office of Carlton Fields Jordan Burt, P.A. as an associate.[3]  After two years, Jung moved to Miami to join the U.S. Attorney’s Office for the Southern District of Florida as an Assistant U.S. Attorney (AUSA).[4]  In 1990, Jung moved back to Tampa to be an AUSA in the Middle District of Florida.[5]

In 1993, Jung joined Anthony K. Black in starting the law firm Black & Jung, P.A.[6]  The firm was renamed Jung & Sisco, P.A. in 2000 when Black left and attorney Paul Sisco joined the firm.  Jung continues to practice as a partner at the firm to the present.

In 2007, Jung was one of 36 applicants to fill two vacant judgeships on the U.S. District Court for the Middle District of Florida.[7]  He was selected as one of four finalists by U.S. Senators Bill Nelson (D-FL) and Mel Martinez (R-FL).[8]  On July 10, 2008, Jung and U.S. Magistrate Judge Mary Stenson Scriven were nominated for the vacancies by President George W. Bush.  While Scriven was confirmed by the Senate on September 26, 2008, Jung did not get a hearing from the Democratic-controlled Judiciary Committee and his nomination was returned to the President.  President Obama declined to renominate Jung and instead nominated another finalist, Judge Charlene Honeywell, who was confirmed.

In 2013, Jung again applied to fill one of two open judgeships on the Middle District.[9]  Nelson and Sen. Marco Rubio (R-FL) selected Jung as one of four finalists.[10]  However, Obama chose to appoint two other finalists, Judge Carlos Mendoza and Paul Byron, who were confirmed.

In 2015, when two more seats opened on the Middle District, Jung applied once more.[11]  This time, Jung was nominated by Obama for the vacancy, alongside Judge Patricia Barksdale.  However, as in 2008, Jung’s nomination did not receive a hearing from the Republican-controlled Senate Judiciary Committee and was returned unconfirmed to the President.

History of the Seat

Jung has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on August 1, 2015, when Judge Anne Conway moved to senior status.  On April 28, 2016, Jung was nominated by President Obama to fill this vacancy.  However, the Senate did not take any action on Jung’s nomination.

In early 2017, Nelson and Rubio urged Trump to renominate Jung and two other unconfirmed Obama picks in Florida.[12]  Jung was formally nominated on December 20, 2017.

Legal Experience

Jung started his legal career as a litigation associate at Carlton Fields.  In this role, Jung tried one “slip and fall” trial and handled one appeal in the Eleventh Circuit before becoming a federal prosecutor.[13]  As a federal prosecutor, Jung tried nearly 40 federal trials including white collar and public corruption cases.  Among his more notable cases, Jung prosecuted Tampa lawyer Charles Corces for “fixing” cases in collusion with state prosecutors.[14]

In 1993, Jung left the U.S. Attorney’s Office to start his own law firm.  In this role, Jung’s practice is evenly divided between complex civil and criminal defense matters.  Jung has particularly made a name in white collar defense, representing, among others, baseball players prosecuted for their use of steroids,[15] healthcare executives accused for accounting fraud,[16] a seafood company accused of importing rancid shrimp,[17] and the human resources director of a company alleged to have hired undocumented workers.[18]

Political Activity

Jung has been fairly active as a Republican donor, donating $2500 for Martinez’s 2004 campaign and $2500 to Rubio’s 2010 campaign, among others.[19]  Additionally, Jung served on the Hillsborough County Republican Central Executive Committee between 1998 and 2002.[20]

Jung has also supported Florida Democrat Dan Gelber, hosting a reception for his senate campaign in 2010 and donating $1350 to his campaign.[21]

Writings

Throughout his legal career, Jung has occasionally written on issues of law and policy.  Three articles that Jung has authored are particularly interesting.

Corporate Rights

In 1983, as a law student, Jung authored an article arguing that the Indictment Clause of the Fifth Amendment, which prohibits prosecution for a capital or infamous crime without a grand jury indictment, applies to corporations.[22]  While acknowledging that a corporation cannot face a capital charge, Jung delves into the common law history of “infamy” to argue that corporate infamy is not based on the potential for incarceration.[23]  Rather, Jung argues that, given the importance of public opinion on a corporation, it serves as a serious deterrent on criminal conduct.[24]  As such, Jung argues that corporations should receive the protections of indictment via grand juries.

Miranda v. Arizona

In a 2009 article, Jung discussed the Supreme Court decision in Miranda v. Arizona and the role of Chief Justice Rehnquist in reshaping the jurisprudence.[25]  Jung also makes a series of recommendations to improve Miranda including the implementation of uniform warnings and a requirement that all custodial interrogations be recorded.[26]

School Desegregation

In 2006, Jung wrote for the Florida Bar Journal in praise of his former boss Judge Tjoflat: specifically, praising Tjoflat’s implementation of the Supreme Court’s desegregation mantle in Swann v. Charlotte-Mecklenburg Board of Education as applied to the segregated Jacksonville school district.[27]  Specifically, Jung’s praises Tjoflat’s decision to insist of immediate desegregation rather than gradual and suggests that the judge is an unlikely hero of desegregation alongside civil rights heroes such as the Fifth Circuit four.[28]

Overall Assessment

While Jung’s last two nominations ended in disappointment, there is good reason to expect Jung to be confirmed this time around.  First, Jung’s nomination has the requisite qualifications for a district court appointment.  He has over thirty years of federal practice experience and has handled almost fifty federal trials.  Second, Jung is not particularly controversial, having the support of both Rubio and Nelson.  Finally, Jung’s last two nominations were made by a lame duck president facing an opposition congress in the last year of his term.  This time, Jung faces a senate that is eager to confirm Trump’s picks.  As such, his nomination will likely be confirmed fairly smoothly.

During the confirmation process, Jung may be asked to elaborate his views on the proper role of a trial judge, given his strong praise for Judge Tfolat’s assertive actions during the Jacksonville desegregation crisis.  He may also be asked to explain his views on corporate rights and whether he has evolved his opinion that corporate crimes are “infamous” for Fifth Amendment purposes.  However, barring the unexpected, such inquiries are unlikely to derail his nomination. After all, if Bush and Obama and Trump were able to agree on Jung’s fitness for the bench, it is unlikely that senators would disagree.

[1]Jung’s tenure as a Supreme Court clerk overlapped with, among others, Arizona Supreme Court Chief Justice W. Scott Bales and former Solicitor General Donald Verrelli.

[2] Sen. Comm. on the Judiciary, 114th Cong., William F. Jung: Questionnaire for Judicial Nominees 2.

[3] See id.

[4] Id.

[5] Id.

[6] See Susan Clary, Who’s News, St. Petersburg Times, Feb. 1, 1993.

[7] Elaine Silvestrini, 36 Step Up for 2 Open Federal Judgeships, Tampa Tribune, Nov. 12, 2007.

[8] Tampa & State, Four Nominated for Federal Judgeships, St. Petersburg Times, Dec. 18, 2007.

[9] Patty Ryan, 4 Left in Search for U.S. Attorney, Tampa Bay Times, Aug. 29, 2013.

[10] Derek Gilliam, Finalists Selected for Positions; 2 from NE Florida in Running for District Judge; 1 for U.S. Attorney, Florida Times-Union, Sept. 19, 2013.

[11] See supra n. 1 at 34-35.

[12] Andrew Pantazi, Rubio, Nelson Urge Trump on 3 Judges, Florida Times-Union, March 24, 2017.

[13] See supra n. 1 at 21.

[14] See Bruce Vielmetti, Jury Begins to Decide if Lawyer Was Taking a Bribe or Entrapped, St. Petersburg Times, Dec. 10, 1992.

[15] See United States v. Scruggs, No. 5:08-cr-144 (N.D. Cal.)

[16] See United States v. Whiteside, et al., No. S97-52-cr-FtM-24(d).

[17] See United States v. Sigma Int’l Seafood et al., No. 85-95-cr-T-24 (M.D. Fla.).

[18] See United States v. Ross, et al., No. 4:10-cr-201 (S.D. Tex.)

[20] See supra n. 1 at 19.

[21] See supra n. 19.

[22] William F. Jung, Recognizing a Corporation’s Rights Under the Indictment Clause, 1983 U. Ill. L. Rev. 477 (1983).

[23] See id. at 499-503.

[24] See id. at 504-05.

[25] See William F. Jung, Not Dead Yet: The Enduring Miranda Rule 25 Years After the Supreme Court’s October Term 1984, 28 St. Louis U. Pub. L. Rev. 447 (2009).

[26] See id. at 456-58.

[27] William F. Jung, The Last Unlikely Hero: Gerald Bard Tjoflat and the Jacksonville Desegregation Crisis 35 Years Later, 80 Fla. Bar. J. 10 (March 2006).

[28] See id. at 14.

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