Democratic Senators Demand 11th Circuit Judges "Explain" their involvement in Felon Disenfranchisement Case.

Or else what. Impeachment?

|The Volokh Conspiracy |

I have written two posts about the felon disenfranchisement case pending before the Eleventh Circuit. I think Judge Brasher made the correct decision to recuse himself, because his former employer (the Alabama Attorney General) filed an amicus brief. I do not think Judges Luck and Lagoa are disqualified, based on their service on a related case before the Florida Supreme Court.

Currently, there is a pending motion to recuse for Judges Luck and Lagoa. Maybe they'll recuse. Maybe they won't. Who knows? I trust that all federal judges have the impartiality and independence to assess a motion on its merits. And the judiciary can handle this matter internally.

Alas, members of the legislative branch decided to intervene. Yesterday, ten Democratic Senators on the Judiciary Committee sent letters to Judges Luck, Lagoa, and Brasher. I think the letter to Brasher is moot, so I'll focus on the Luck and Lagoa letters. Both conclude with the same paragraph:

As the first branch, it falls to Congress to oversee the federal Judiciary. That oversight includes a responsibility to ensure that sitting federal judges honor their commitments to the Senate and the public and follow all applicable rules and codes of judicial conduct. Consistent with this congressional oversight purpose, we ask you to explain how your involvement in the decision to grant en banc review in Jones v. DeSantis — and your continued participation in this case — is consistent with the commitments you made to the Senate Judiciary Committee and the Code of Conduct.

Let me offer a charitable reading of the letter. Perhaps the Senate could ask the judges to provide information that would allow them to craft legislation to promote judicial ethics? (The Supreme Court recently shot down a similar argument in Mazars). Or perhaps this information is needed to help enforce the Voting Rights Act?

I'll be blunt. These letters are blatant efforts to intimidate life-tenured federal judges. Judges Luck and Lagoa are under no obligation to explain themselves. If the Senators think the judges committed a high crime or misdemeanor, they can be impeached. Impeachment is the only way that Congress can exercise oversight over a single federal judge. Short of that, the Senate should focus on their own business.

Florida addressed these letters in its brief in opposition to the recusal.

Over the last 36 hours, two members of this Court have become the targets of extraordinary attacks by the Democratic members of the Senate Judiciary Committee intended to intimidate them into recusing themselves from this case. See Notice to Counsel re: Ex Parte Communications (11th Cir. July 22, 2020). Verbal assaults on the judiciary have become regrettably common in American politics, and they pose a growing threat to the rule of law. The Framers anticipated this type of attack on the courts: because of "the natural feebleness of the judiciary," it would be "in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches." The Federalist No. 78 (Alexander Hamilton). That, Alexander Hamilton explained, is why Article III gives federal judges lifetime tenure. Id.

Ironically, while Movants and their Senate allies invoke statutes and ethical canons designed to promote public confidence in the judiciary, it is they who threaten the judiciary's independence by calling into question the integrity of two of this Court's Members without even a colorable basis for doing so. As the Chief Justice recently said in response to threatening statements made by a United States Senator about Justices Gorsuch and Kavanaugh, such statements "are not only inappropriate, they are dangerous." Office of Public Info., Statement of Chief Justice John G. Roberts, Jr., Supreme Court of the U.S. (March 4, 2020).

I fear that this broach of ethics by the Senators will become the new normal. We may actually see Democrats try to impeach Trump nominees in the new Congress. Though circuit court packing is a much easier way to accomplish that goal.

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  1. The Supreme Court just ruled that the power to appoint includes the power to control the appointee’s aubsequent behavior and in particular to enforce pledges made during appointment.

    Why is this different? Legistures don’t “intimidate” electors when they enforce pledges made when electors were candidates for appointmemt.

    Why should there all of a sudden be a different principle for judges?

    1. Presidential electors are almost nothing like federal judges, and are fundamentally different with respect to the two aspects you mentioned. But you knew that, and that’s why you didn’t mention which case you were referring to, right?

      1. Still, that ruling was totally a triumph of “Holy shit, if we rule they have discretion it’s going to be a war zone out there!” over every textual and originalist argument.

        There’s no question the electors were supposed to exercise their own judgement. It wasn’t even a close case. But nobody was ready to go there, given the practical consequences.

        1. And I’m good with that. If textualism and originalism get us bad results, then we should not go with textualism and originalism.

          It’s the old dispute between Kant and Hume about which is more important, adherence to principle or obtaining a good result. The classic example is should I tell a lie if it prevents a murder. The textualists and originalists among us would say absolutely not; I disagree. I think if your principles result in a dead body, it’s time to revise your principles.

          1. It’s worth noting that textualism and originalism presume that there hasn’t been some massive external change in circumstances in the interim. It really isn’t that offensive to originalism or textualism to say that electors in 2020 don’t do what electors in 1792 did.

            1. In terms of what is good policy, I agree with you that there have been massive changes in law, culture, custom and society since 1792. But if I understand originalism correctly, the only thing that matters is what James Madison would have thought about it.

            2. “It’s worth noting that textualism and originalism presume that there hasn’t been some massive external change in circumstances in the interim.”

              No, they don’t. They presume that “massive external change in circumstances” doesn’t amend the law. That “massive external change in circumstances” might be something you’d want to use as an argument for changing the law, but you change the law by changing its words, formally.

              Look, we have procedure for changing the law, because the procedure is how we demonstrate that the people entitled to change the law actually want it changed.

              You couldn’t get an amendment? That’s pretty conclusive evidence your change didn’t actually have support, and you’re just bullshitting about having the public on your side.

              1. Or it may be conclusive evidence the amendment process is more onerous than it should be.

    2. Electors are totally like life-tenured judges. Definitely. 100%. Great argument ReaderY. /sarc

    3. That’s one reason why RBG came up with the Ginsburg Rule to avoid misunderstandings over hypotheticals with a few postulated facts and real cases with a unique set of concrete facts.

    4. A better argument. Executive privilege is not absolute. The courts have held that members of the Presidents inner circle must testify before Congress on decisions concerning exercising executive power. Why shouldn’t the judiciary be subject to similar oversight? Is judicial privilege stronger than executive privilege? Separation of Powers for me but not for thee.

  2. Fortunately Republican senators would never do anything unethical with respect to the judiciary. Or at least, if they did, they’d be sure to get a slap on the wrist from Josh Blackman…

    https://www.nytimes.com/2020/03/16/us/politics/mcconnell-judges-republicans.html

    1. Did you actually read the article you linked to? Republicans want Republican-appointed judges to “retire” so that they can create a vacancy to fill with younger judges. I’m willing to accept an argument for how that is unethical, if you have one.

      Democrats here are “meddling” (or possibly attempting to meddle) in a specific case, seemingly threatening judges (though, I don’t particularly agree that these letters are intimidation or threats) for accepting a case.

      These two things are not analogous. Even if we assume the worst/best of the different situations.

      1. If retiring early so they can be replaced with Republicans is unethical, than so is retiring late so you can be replaced by a Democrat.

        1. Federal judges have lifetime tenure. They aren’t supposed to retire at all. They are supposed to remain in office until their dead bodies (having been turned into puppets) decay to the point that the ruse can no longer be maintained.

        2. Judges can retire whenever they want to. It’s the pressuring them that is unethical.

      2. Who has to thumbs and is not at all surprised by the chorus of “nothing to see here, it’s all fine” coming his way?

        1. Who has to thumbs what? Please finish the joke.

          What you posted is most definitely “nothing to see here”, completely unrelated to the topic at hand, and was even a terrible whataboutism. You should really feel bad about that post, if you had any intelligence or humility to speak of.

    2. I seem to recall some Democratz wanted RBG to retire before Obama left office so he could appoint a younger judge. Pretty much the same thing.

      1. If that involved Senators (who, of course, are literally the only ones with any ability to remove a judge), then you are 100% correct. Or, if it involved Obama (who was literally the only person with the ability to nominate a replacement), then you’re correct again.

        But if it’s just liberals, writ large, who wanted older Justices to retire so Obama could name a replacement (and, remember, they were doing this with the full confidence that Hillary Clinton would be the next president), then that seems perfectly fine to me. If Rush, or Tucker, or you, or Republicans in the House urge a Justice to retire, then I have zero problem with that as well.

    3. There is nothing unethical about canvassing judges about their retirement plans and making suggestions about timing.

      I do think it was probably improper for Johnson to solicit Tom Clark’s retirement because he offered an inducement, and also created a conflict, by appointing Tom’s son Ramsey as AG as part of the deal.

      RBG was lobbied by prominent Democrats, perhaps even by Obama to step down in the first half of his second term.

    4. Keep crying. You’ll never be a real girl.

  3. 1. Congress sets jurisdiction and budgets; it does have oversight of the judiciary.

    2. This is very much not how you exercise such oversight.

    3. But this is performance, not intimidation. There is no realistic chance Congress could do anything to these judges.

    4. Is this unprecedented, or has it happened in the past? In the service of drama, Blackman does not say.

    5. Fine to say this was a bad letter, but the right has given up the ability to credibly make an argument about shifting norms for a while.

    1. Dang, you were doing so good. All the way up until the whataboutism.

      1. It’s not even specific whataboutism. It is whataboutism that leaves the reader to do all the work.

        I would submit that the side that has been subjected to an incredibly vague impeachment, accused of racism for declining to apply race-based standards, and hasn’t threatened to have local police arrest federal agents for doing their jobs, probably has better standing to make an argument about shifting norms.

      2. The right tone policing about the judiciary lacks credibility. Blame your President.

        1. Plenty of GOP/Conservatives criticized Trump for his judge comments. For instance https://www.rollcall.com/2016/06/06/gop-senators-criticize-trumps-comments-on-judge/

          Has a single prominent liberal/Democrat criticized Whitehouse for his repeated attacks on Jude Rao, calling her corrupt, a clown and putting “judge” in scare quotes?

          Your norm policing is just one sided.

          1. LOL. Yeah, the GOP Senate has truly been keeping Trump in line!

            I know you’re not that much of a chump.

            1. Nice dodge.

              Has a single prominent liberal/Democrat criticized Whitehouse for his repeated attacks on Jude Rao, calling her corrupt, a clown and putting “judge” in scare quotes?

              1. You think those are equivalent to what Trump’s said?

                Peddle your fake outrage elsewhere.

                1. Has Trump done any his stupid schtick in official correspondence to said judges, or it has it all been Twitter bluster and hyperbole? (I don’t try to keep up, it would be a full time job just to read all of the stupid crap he says…)

                  I disagree that the letter was intimidating (if it was meant to be). And, if it was, it seems that the judges could say “or what?” and carry on their merry way. Then, if Congress wanted to, they could respond with “ok, impeachment proceedings, go”. It seems more likely to just be posturing though. The letter to Luck says:

                  “you promised under oath that, if confirmed to the Eleventh Circuit, you would recuse yourself from cases in which you participated as a Florida Supreme Court Justice.”

                  and:

                  “appears to contradict the commitments you made to the Committee that you would recuse yourself from any case where you have ‘ever played any role.'”

                  It leads me to believe that what’s really happening here is nothing more than, “you’re a hypocrite, neener, neener”.

                  1. How is this not bluster and hyperbole. You admit it wasn’t intimidating.

                    Yeah, your outrage doesn’t track either.

                    1. Yes, I think it was bluster (but not hyperbole), in official correspondence to the judges. If these congresscritters had posted it on Twitter, it would be as stupid as anything Trump does on Twitter, and also not official correspondence. Interesting how that works. Do you need it explained further?

                      Outrage? Your initial response was great, until you did the same crap that you like to call out other people for. Whataboutism is “ok for me, but not for thee”. Just calling out your hypocrisy. Your refusal to point the finger of fallacy at yourself is orders of magnitude more outrageous than this crap.

                    2. …Do you think I believe the letter is cool and good? Re-read my OP.

                2. I think that anything posted by anyone on Twitter should just be ignored. Hell, it’s why I don’t have a Twitter account. I’m also not on the same page as Bob. I don’t care who said something stupid on Twitter (yes, even if it’s the President, or a Senator, or whatever). Twitter is for the mob whose attention span amounts to “look, squirr… oooh, shiny”.

                  1. Trump’s made official policy via Twitter, from EOs to firing people.

                    1. He made policy via Twitter? Or he announced a policy decision via Twitter? Does Twitter provide a template for writing and signing EOs?

                      It was a dick move to announce the firing of whatshisname before actually firing him. That doesn’t mean he was fired via Twitter. And, I doubt that would even be legal.

                    2. Announcing his policy decisions alone is enough that twitter is important to follow.

                      LOL at Trump firing people and paying attention to legal niceties.

                3. “You think those are equivalent to what Trump’s said?”

                  “Judge” Reo and “so called judge” are the same, yes.

                  1. You think that’s all Trump said about judges?

                4. I will point out that Trump has no leverage over the judiciary after he’s appointed the judges. Congress does have the power of impeachment, so while unlikely it does have some real teeth.

            2. You mean like when they condemn him for making out-of-line statements about a judge’s qualifications?

              https://www.rollcall.com/2016/06/06/gop-senators-criticize-trumps-comments-on-judge/

    2. Not to state the obvious, but the judiciary, Congress and the President are co-equal branches of government. Yes, there are checks and balances in the constitution to prevent any one branch from dominating the others. But Congress does not exercise “oversight” over the judiciary any more than judicial review grants the judiciary “oversight” over Congress, or the veto power grants the president “oversight” over Congress.

      That said, what is occurring here is not Congress exercising a check-and-balance function. It is ten individual members of Congress interfering, by extra-judicial means, in the resolution of a specific pending motion by sitting judges in a specific pending case. This is absolutely improper.

      1. It’s improper the way Joe McCarthy was improper — And the GOP-controlled Senate should censor these clowns.

        It also shows how desperate the Dems are…

      2. co-equal branches

        The phrase that pays.

        The appropriate response to these letters is absolutely nothing.

        Next best is: dear legislators, put or shut up. You have the power of impeachment. Exercise it, or pound sand.

      3. This is getting semantic, but it seems to me that if you’re a deliberative body with investigative powers, and you have both budgetary and authorization power, you have oversight.

        I see oversight as part of the checks and balances system. The judiciary has the power of judicial review over Congress, and Congress authorizes the judiciary, except for the Supreme Court.

        Though I allow that reasonable people can differ on the point.

        I think this letter is a bad move and the Senators should never have done it, but I don’t think it’s actual interference either in intent or effect.

        1. Congress is a deliberative body but it does not have general investigative powers. What it does have are limited investigative powers for the defined purposes of a) conducting impeachments and b) crafting new legislation. Neither of those purposes extends to anything like a general power of oversight. Neither comes anywhere close to the authority asserted in this letter.

          1. In ought-land, I disagree re: no general investigatory power. But I concur that such is the state of the law.

            But even though Congress has investigative powers limited by it’s legislative ambit, that does include the judiciary.

            1. IF they are seeking to craft a law about how to judiciary operates. Or if they are impeaching a judge. Absent those reasons they have zero legal oversight of the judiciary. Given that neither case is presented in the letter, the letter oversteps their authority. With that now as a given, what is the purpose of the letter? Either the Senators who sent it are too stupid to know their job and limitations OR they were motivated by something else. And regardless of what that something else is… it STILL isn’t within their prerogative making it an intrusion into the judiciary.

              1. Determining whether one must craft a law is part of lawmaking.

                The purpose of the letter is political posturing; evincing outrage to the right people.

  4. I’ll be blunt. These letters are blatant efforts to intimidate life-tenured federal judges. Judges Luck and Lagoa are under no obligation to explain themselves. If the Senators think the judges committed a high crime or misdemeanor, they can be impeached.

    ^This

    As the Chief Justice recently said in response to threatening statements made by a United States Senator about Justices Gorsuch and Kavanaugh, such statements “are not only inappropriate, they are dangerous.”

    ^^And this.

    This is an extremely dangerous path that I don’t believe our country wants to tread upon. The average person could care less about this. To me, it illustrates the incredible disconnect between DC and the rest of the country.

  5. Can’t wait for Prof. Blackman’s blog about the President’s attacks on the Judiciary: https://www.brennancenter.org/our-work/research-reports/his-own-words-presidents-attacks-courts.

    1. That will come out on the same day Irina Manta writes about Chuck Schumer’s personal threat against Justices Gorsuch and Kavanaugh and how that contributed to the alleged increase in threats against federal judges.

      1. It’s rather telling that no effort was made to find any common factor among the judges being threatened. Like, maybe, which President nominated them.

        1. Which president nominated Judge Esther Salas?

          (Please do not let that inquiry interfere with your search for former Pres. Obama’s birth certificate, Brett Bellmore.)

    2. >brennancenter
      And into the trash it goes. Trump must live rent free in your head apemom.

  6. “I’ll be blunt. These letters are blatant efforts to intimidate life-tenured federal judges. ”

    So what is it you are arguing that ‘life-tenured’ should act as a protective shield?
    Since they cannot be voted out, or run out the clock till their terms expire, then addressing life-tenured folks is necessarily different than ordinary politics.

  7. Impeachment would require a super majority in the senate to convict, it is extremely unlikely.

    A violent mob attacking the judges’ homes, OTOH, requires no vote in Congress at all, just a word to the right ear. Far more likely.

    1. Just a word to the left ear more likely.

    2. Stop being a paranoiac, Brett. This was not a secret signal to target the judges.

      Jesus, get therapy or something.

  8. Letter and amicus brief from democrat senators in this case and the NY 2A case

    Why no letter or amicus regarding kagan & the aca case?

  9. “The first branch”?? I really missed the part of the Constitution that made Congress the branch that had authority over the others. I thought they were three co-equal branches.

    1. The Legislative Branch is Article 1, but it’s a pretty cheeky statement.

  10. The theme of politics now – if the Left does it then it is just and virtuous. If the right does it then the action is evil and fascist.

    So here it is OK to threaten judges.

    No further analysis needed.

    1. Who on here is saying this letter is a good idea?

  11. Wow. They can’t even be bothered to do their own jobs of writing legislation (preferring to continue the trend of over-delegation to executive branch agencies) yet they think they are competent to oversee the judiciary. That’s some arrogance.

  12. This guy is beginning to evoke Kanye West in full ‘I almost killed my daughter’ public meltdown.

    Time for an intervention with respect to your fledgling, Conspirators?

  13. This whole situation sucks. Senators (or anyone else) shouldn’t send letters to judges that are even vaguely intimidating or threatening.

    And we need a better solution to voting rights than relying on the federal judiciary or Congress. It’s incredibly unlikely in an environment where Republican Senators proudly say that D.C. residents aren’t even real people deserving of a voice in Congress, but there needs to be some voting rights constitutional amendment so states, Congress, and judges can’t play these games with something so important anymore.

    Particularly federal judges. They are the least accountable officials in our entire government structure and turn into absolute political hacks whenever voting rights are involved. Anytime an un-elected judge makes a hackish ruling saying millions of people can’t vote, he or she is undermining the legitimacy of our system, including their own.

    1. “un-elected judge makes a hackish ruling ”

      Sarcasto, norm breaker needs some policing here.

      1. You’re right, the word “un-elected” there is redundant. Someone who is elected is by definition not a judge, but a politician.

        1. Many US states have elected judges.

          1. No, they have politicians deciding cases pretending they are judges.

      2. You’re just making a fool of yourself and highlighting your complete lack of perspective.

        1. Confirming that your norm and tone policing is completely one sided.

          1. An internet commenter calling a ruling hackish is not the same as the President calling a judge racially biased and needing to recuse.

  14. IANAL, but I would love to see an authoritative definition of what congressional oversight means. I’m thinking of how oversight differs from supervision or participation.

  15. It is also worth noting that the case at the 11th Circuit now is no “small peanuts” to the Democrats. Even though it has avoided national media spotlights so far, the Dems know darn well that the margin between R and D in Florida is about 1%. If they can get ex-felon votes (probably most of which will be D) that could easily wipe out that R advantage. Hence why this case is being pushed hard by the left.

    1. Jimmy, you’re partially right. Obviously since this is politics, politics enters into it. Just as the reality that the electoral college benefits Republicans factors into the fact that Republicans love it and Democrats hate it. And the reality that voter suppression benefits Republicans factors into the GOP’s practice of voter suppression. If minorities voted Republican, the GOP couldn’t get them to the polls fast enough. And if the electoral college ever gives the presidency to a Democrat who lost the popular vote, the Republicans won’t be able to get rid of it fast enough.

      But I also think that liberals in general tend to be more concerned about having a fair process with a fair result than conservatives do. Whether we’re talking about a social safety net, or access to the courts, or elections being decided by the majority, on issue after issue the liberal position just happens to be the fair one. Conservatives have no qualms about saying that it should be harder for Democratic voters to vote and have their votes counted. I really don’t think Democrats would take the same position if the shoe were on the other foot. Because fairness is something we care about.

      1. Republicans engage in race-targeting voter suppression for two reasons: (1) they believe it helps them in electoral terms and (2) they are old-timey bigots. Efforts to parse which motivating factor is more important in a particular context seem silly.

        1. Arthur, if you and I were congressmen, we’d probably vote alike about 95% of the time, but I sometimes think you sweep with far too broad a brush. Some Republicans engage in voter suppression because they’re racists. Some do it because they’re cold, hard opportunists. Some do it for both. And some don’t do it at all.

          And why it’s done in a particular case is relevant to the strategy for getting rid of it. In a region in which racism is the dominating factor, the strategy will be very different than it will be in a region in which simple political opportunism is the reason. One uses different tools to address different problems.

      2. No, they’re only concerned with a “fair process” if it benefits 80 IQ Democrat Party voters. I don’t see much concern for a “fair process” when it comes to California’s ballot harvesting law.

  16. You know, I really wish these Democrats had not written this letter. It is completely and totally improper, for all the reasons given, but it also deprives Democrats of the high ground in what had been, up until now, mostly Republican attacks on an independent judiciary.

    I’m a Democrat, but I won’t attempt to defend this. It’s shameful.

    1. Independent? Seems debatable, from both sides.

    2. And they didn’t have the high ground. To point out Schumer and Obama’s comments a out judges and the judiciary does not mean that Trump is pure. But it does point out that the horse of “the high ground” left the stable long before this… if it was ever in the stable to begin with.

    3. They lost the high ground back when they threatened SCOTUS over NYSRPA. Or am I the only one who remembers that?

  17. The Senate has turned into the unruly mob the House was designed to be. Time to repeal the 17th Amendment.
    And while at it, amend the Constitution to limit the Supreme Court to no more than nine judges. Let’s take court packing out of the game.

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