The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.