Biden judicial nominee omitted disclosure of overturned rulings in child sex cases

A judge in Florida tapped by President Joe Biden for a top federal court spot failed to disclose at least two child sex-related cases that saw his lenient rulings reversed — until now.

Embry Kidd, a judge in the U.S. District Court for the Middle District of Florida, is under fire by Republicans over his prior omission of the two cases on his nominee questionnaire, which was quietly updated this week to address the matter. Biden nominated Kidd in May to fill a vacancy on the 11th Circuit Court of Appeals, which oversees courts in Alabama, Florida, and Georgia.

“Not only is this becoming a pattern, the content of these belatedly-disclosed cases is concerning,” Sen. Lindsey Graham (R-SC), the Senate Judiciary Committee’s ranking member, told the Washington Examiner. “With all due respect, these cases should have been disclosed. It is hard to provide advice and consent on a judicial nominee when the nominee doesn’t disclose highly relevant cases.”

Meanwhile, Sen. Rick Scott (R-FL), who is also concerned about the unearthed disclosure, told the Washington Examiner he did not “consent” to Kidd’s nomination as Florida’s junior senator.

“President Biden continues to nominate judges who are totally unfit for the federal bench in his continued efforts to weaponize our judiciary,” Scott said. “The Biden administration’s decision to advise nominees like Judge Kidd to not disclose bad rulings regarding child sex predators, some of which were later rightfully reversed by the supervising district judge, is disgusting, dangerous, and right on brand for this lawless administration.”

The tension over Kidd’s disclosure failure is a window into how Republicans continue to feud with the Biden administration over its judicial nominees. Adeel Mangi, a nominee for the 3rd Circuit Court of Appeals, has had his confirmation notably stalled for months after several Democrats joined Republicans in raising concerns about his unearthed affiliations with left-wing activists, including at a think tank that once hosted a convicted terrorist financier. The Washington Examiner reported in March that Mangi failed to disclose his participation in a conference with anti-Israel activists — leading to Mangi issuing an apology.

The Senate Judiciary Committee’s questionnaire includes a section asking nominees to provide a summary and citations for any of their prior court opinions “reversed by a reviewing court” or where their “judgment was affirmed with significant criticism of your substantive or procedural rulings.” The purpose of this section is for lawmakers to be able to vet nominees fully, many of whom have past ties that are ripe for scrutiny and, in some cases, lead to rejection from the upper chamber.

During Kidd’s nomination hearing in early June, Sen. Dick Durbin (D-IL) asked him about certain cases he presided over.

“I expect that at least two or three of the decisions which you reached will be very controversial and raised in this committee. This is part of the process. I know that you are prepared for that,” Durbin told Kidd.

However, Durbin’s remarks keyed Republicans in on two cases that, the GOP says, had been wrongfully omitted from Kidd’s questionnaire. Senate staff investigators often use research tools such as Westlaw or LexisNexis to locate information about cases, but U.S. v. D’Haiti and U.S. v. King were oral rulings — meaning they are not indexed in these databases, and Republicans were not previously aware of them.

U.S. v. D’Haiti pertained to a case in which the defendant, a male who was a cheerleading coach at a central Florida High school, was arrested in 2022 for possession of child pornography, court records show. The defendant, in one instance, reached his hands up a minor’s sports bra and fondled her.

But Kidd, according to the court records, elected in July of that year to release the defendant based on his “high character,” “ties to the community,” and “lack of criminal history.” One month later, a district judge reversed that order based on further evidence and ordered the defendant to pretrial detention.

The teacher, 41-year-old Vigiland D’Haiti, was sentenced in October 2023 to 29 years in prison for coercing a minor to produce sexually explicit content.

The second case, U.S. v. King, related to a convicted sex offender charged with receipt and possession of child sex abuse material. In April 2023, Kidd issued an order restricting only some of the defendant’s usage of the internet and devices.

“All that’s been presented is that you downloaded images and that you had them on your phone, that you admitted to having them,” Kidd told the defendant. “While that does pose some danger, the danger that’s articulated is that the victims will be revictimized.”

“And I think that those will be sufficient to mitigate any risk of danger that you pose,” he added.

In May 2023, a district judge revoked Kidd’s initial order releasing the defendant based on the danger he posed to the community and the “compulsion of pedophilia that he cannot control,” documents show. An FBI special agent later testified about the defendant’s attraction to a child at a restaurant, with the district judge concluding there were no conditions “that can assure the safety of the community, particularly young children.”

The defendant was sentenced to roughly 24 years in prison.

Both of these cases, no matter how controversial, should have always been included on Kidd’s questionnaire, according to Republicans. In written questions this month, Graham pressed Kidd on the omissions.

Kidd told Graham that he consulted with the Justice Department, which advised the nominee that he did not need to make the disclosures. Kidd also said he discussed the cases with the White House Counsel’s office. Moreover, based on Kidd’s review of completed questionnaires by other judges, he said he didn’t think disclosure was necessary.

Senate Judiciary Republicans, however, located almost two dozen examples where nominees under the last three administrations disclosed cases in which either more evidence was presented or factual circumstances led to a decision reversal.

For instance, the Biden-appointed Judge Stephanie Dawkins Davis for the 6th Circuit Court of Appeals disclosed Galimore v. York, a robbery and assault-related case, which saw new evidence presented. Doris Pryor, whom Biden successfully nominated for the 7th Circuit Court of Appeals, disclosed a premises liability case called Robertson v. Choice Hotels, telling senators, “Based on the discovery of the notification issues, the district judge overruled my report and recommendation to dismiss plaintiff’s complaint without prejudice.”

Kidd, in his written response to Graham, said he “promptly updated” his committee questionnaire upon “learning that these decisions were viewed as potentially responsive.”

“Had I known at the time of filing that these decisions were potentially responsive, I would have supplied them in my initial filing,” Kidd told Graham. “I take seriously my duty of candor to the Senate and to the American people.”

The White House declined to comment, pointing the Washington Examiner to the DOJ.

The DOJ did not reply to a request for comment.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

Spokeswoman Emily Flower for Senate Judiciary Committee Republicans said Kidd’s prior lack of disclosure is concerning because it “denied senators the ability to fully evaluate the nominee for a lifetime judicial appointment.”

“When a nominee fails to properly respond to the committee questionnaire, the committee is robbed of a chance to question the nominee at their hearing, as happened in this instance,” Flower told the Washington Examiner.