Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Courtesy photo. Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Courtesy photo.

The U.S. Court of Appeals for the Eleventh Circuit will have a different makeup by March 2020, when Judge Stanley Marcus will have become a senior judge—along with the circuit's longest-serving active judge, Gerald Bard Tjoflat.

The change means President Donald Trump will select two new judges for lifetime appointments. Tradition dictates that they should come from Florida, where Marcus and Tjoflat are based.

With two more appointments, Trump will have named five judges who will serve on the Eleventh Circuit for decades to come. That's almost half of the court's active bench, which will be made up of seven Republican and five Democratic appointees. Trump has already filled two Georgia seats and an Alabama seat.

What happens next will be "very consequential" for Florida, according to University of Richmond law professor Carl Tobias, who tracks and writes nationally about judicial nominations. Though judges are impartial figures bound by a code of conduct to avoid politics, their ideological leanings do leave a mark, the way Tobias sees it.

"I don't think it's any secret that most of Trump's appellate appointments, and I think he would agree, have been extremely conservative ideologically, especially on culture war issues like abortion, voting rights, racial discrimination, capital punishment, those kinds of issues that do come up in the Eleventh Circuit," Tobias said.

'Extremely Conservative'

The Eleventh Circuit handles appeals from nine federal courts across Georgia, Florida and Alabama, and maintains 12 active judges—five from Florida, four from Georgia and three from Alabama. Marcus is based in Miami and Tjoflat in Jacksonville. Senior judgeship is akin to semi-retirement, allowing jurists to keep their salary with the option to reduce their caseload.

Marcus, 73, rose to the circuit bench in 1997, when Democratic President Bill Clinton nominated him. Before then, Republican President Ronald Reagan had appointed Marcus to the Southern District of Florida.

Tobias said he's interested to see how the White House will go about filling the vacancies, and to what extent it will consult with Florida Republican Sens. Marco Rubio and Rick Scott.

The president typically consults representatives from the state with a vacancy, who might recommend certain candidates. But Trump will make the final call on nominations, which will go to the Senate Judiciary Committee for a vote.

"What would be critical is to watch whether the senators take the lead," Tobias said. "My guess is Rubio would. He would want this opportunity to put his imprint on it and the patronage that goes with it."

Related story: Judges Speak Out: Retiring Justices Don't Approve of Gov. Rick Scott's Rush to Replace Them

The Judicial Nominating Commission is typically involved in selecting nominees for the district court, but not the court of appeals.

Federal appeals court judges often come from district courts or state supreme courts. Florida Justices Barbara Lagoa, Robert Luck and Carlos Muniz might be considered, being recent Gov. Ron DeSantis appointees. District judges appointed by President George W. Bush could also be in the running—like U.S. District Judge Cecilia Altonaga, who's served on the bench since 2003.

Trump's recent appointments in the Southern District of Florida might be "easy lifts" for an election year, in Tobias' view, as they've recently been vetted by investigative bodies and approved by the Senate. Former Miami-Dade Circuit Judge Rodolfo Ruiz breezed through his Senate vote, confirming his spot on the Southern District of Florida bench in May.

But candidates don't have to be an existing judges as experienced practitioners can also climb the ranks—like former Miami Podhurst Orseck partner Roy Altman, who was appointed to the Southern District of Florida in April. Trump might contemplate Ariana Fajardo Orshan, U.S. Attorney for the Southern District of Florida, whom he appointed in 2018.

Miami criminal defense attorney David Oscar Markus, who writes the Southern District of Florida blog, said he was surprised by Marcus' announcement but urged those speculating about a replacement not to forget about the judge's legacy.

"While many will be debating what this means for the Eleventh Circuit, everyone should remember that Judge Marcus has given a lifetime of service to this country," he said.

Marcus and Tjoflat have said they will take senior status once their successors are in place.

Read more:

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