It’s my understanding that Senator Rubio supports moving forward with the nomination of Judge Brian Davis, to be United States District Judge for the Middle District of Florida. While I generally give great consideration to support from the home state Senators, in this case I cannot support the nomination. After carefully reviewing Judge Davis’s record, I have concluded that Judge Davis views the world through a lens that I think is inappropriate and unacceptable for a federal court judge.
Judge Davis made remarks in a speech, referencing several issues relating to race. These are his words:
“12/9/94 Dr. Joycelyn Elders, Surgeon General of the U.S. is asked by the President to resign after being misinterpreted about student sex education, reminding us, lest we forget, that politically correct is spelled with capitol letters for melanin impregnated females.”
“2/2/95 President Clinton nominates Dr. Henry W. Foster, Jr. … as Surgeon General but the Senate filibusters so as not to confirm the Dr. because of a controversy over the number of abortions the Dr. performed early in his career, reminding us again, lest we forget, that politically correct is also spelled with capitol letters for melanin impregnated males.”
“9/12/95 Fairfax, Va. 400 people protest outside the home of Supreme Court Justice Clarence Thomas because of his opinions in rulings affecting affirmative action and voting rights, reminding us, lest we forget, how easy it is for some of us to forget history.”
Judge Davis was asked about these statements in his hearing and in written questions. Frankly, I thought – and had hoped – he would flatly disassociate himself from these remarks, and hopefully we would be able to move past them. But that is not what happened.
Instead, at his hearing he chose to give a long and completely non-responsive answer about his effort to get people engaged in racial issues in their community. I can respect that objective. But I hardly see how the statements in his speech served that purpose.
For instance, as I mentioned, he cites President Clinton’s decision to ask Dr. Joycelyn Elders to resign “after being misinterpreted about sex education” as evidence that, in his words, “politically correct is spelled with capitol letters for melanin impregnated females.” The clear implication of his statement is that Dr. Elders was asked to resign not because of her views on teaching young children certain sexual acts, but instead because of her race.
In follow-up questions, I asked him about this statement. In particular, I asked him about Dr. Elder’s statement, and how her controversial comment could possibly be misunderstood. He responded, “I believe some people thought Dr. Elders was advocating teaching children how to perform a sexual act. I think that impression was a misunderstanding.”
In my estimation, Dr. Elder’s views were pretty clear. I don’t see how one can say she was “misunderstood.” But much more importantly, I think it is entirely inappropriate to suggest that those who found fault with her views and comments did so because of her race.
Judge Davis did finally acknowledge that the remarks were inappropriate – as he stated “for the reason that an impression could be gotten from them that somehow the court maintained a racial prejudice.”
But it is not just that the comments suggest Judge Davis maintained a racial prejudice. Any fair reading of his comments makes clear that Judge Davis is assigning a racial motivation to those who had legitimate policy disagreements on particular issues. He is willing, even in his current explanation of his prior statement, to ignore the facts of why Dr. Elders was appropriately dismissed.
He similarly ignores the facts with regard to his statements about Dr. Foster. Some of us on this Committee recall the debate the Senate had on Dr. Foster’s nomination to be Surgeon General in 1995, and as part of that debate, the fact that he had performed abortions. That was but one concern of many regarding that nomination.
I’m not going to re-open that debate here. But I would just say that some of us have strong convictions about life issues. You may agree, or you may disagree with us on the merits of those convictions. But I take offense to the suggestion that I voted against Dr. Foster, not because of his record, but based on his race. And that is the clear and obvious implication of Judge Davis’s statements.
Yet, when I asked him about these comments in written questions, he still would not flatly concede that it was inappropriate to assign racial motivation to those who opposed Dr. Foster. Instead, he said that his comments “could” be “interpreted” in that way, and therefore that he lacked “impartiality.” But there is no other way to reasonably interpret those remarks.
With regard to his comment about Justice Thomas, he stated at his hearing and in response to my written questions that he was simply expressing the sentiment expressed by the protestors.
I found this explanation to be confusing, to state it charitably. In the first place, I fail to see how his remarks could be interpreted to be anything other than demonstrating a bias from a sitting State court judge, and critical of a Supreme Court Justice. And again, he said that his remarks “could” or “might” be “interpreted” in a particular way. The fact is there is no reasonable way they could have been interpreted otherwise.
Beyond the perception of bias, is the problem of attacking a sitting Justice, whose majority opinions he is bound to follow. Canon 1 of both the Code of Conduct for United States Judges and the Florida Code of Judicial Conduct states, “A Judge shall uphold the integrity and independence of the Judiciary.” I am not suggesting that Judge Davis violated this Canon. There is no allegation of that, nor do I think he did so. But I do think that using Justice Thomas in his speech, in the manner Justice Thomas was referenced, moves away from the intent of that Canon rather than upholding respect for the Judiciary.
At the end of the day, his repeated emphasis on negative and fact-deficient examples to motivate a particular audience concerns me deeply, and makes me wonder about his own judgment.
One thing that was clear from his testimony is that he intends to continue in his work in this arena. Let me quote from his hearing: “Having said that, I don't intend to stop the work in the community that I've begun and have worked around for very many years, because I think it's important for judges to be involved in their community around issues that are important to the community.”
If Judge Davis does continue, either as a State Judge, or as a federal District Judge, I hope that he moderates any future remarks he might make, keeping in mind Canons of the judicial code by which he is or will be bound. Judges are obligated to promote the impartiality of the judiciary and to not lend the prestige of judicial office to advance the private interests of the judge. Judges are encouraged to speak, write, and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice, and the role of the judiciary. But as the Code states, “In doing so, however, it must be understood that expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may cast reasonable doubt on the judge's capacity to act impartially as a judge and may undermine the independence and integrity of the judiciary. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race ….”
Again, I want to be absolutely clear on this – I am not accusing Judge Davis of violating any Canon or of unprofessional conduct. But even he acknowledges that his prior remarks might make participants wonder whether or not the court – referring to his court – might have bias.
I am also concerned about Judge Davis’s left-leaning views he expressed by stating “the elimination of the extremes of wealth and poverty of our world is a good to be sought.” I asked him about this statement. He replied that he was advocating “for the elimination of that disparity by improving the lives of those in poverty through education.”
I would embrace the goal of improving the lives of all individuals, but I reject the underlying premise that the elimination of wealth is a necessary means to accomplish that objective. I think his response lacks clarity, to say the least.
His views on sentencing and religious liberty are also of concern, but I will not elaborate on those views here. I would just conclude by saying that I’m sure Judge Davis is fine individual and a dedicated public servant.