Democrats Press Trump Appointees to Recuse From Felon Voting Case

More and more, Democrats push Republican-appointed judges to bow out of politically sensitive cases

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• July 24, 2020 11:45 am


Democrats on the Senate Judiciary Committee are pressing three Trump appointees on a federal appeals court to explain why they haven't recused themselves from a politically charged case implicating the voting rights of 750,000 felons in Florida, a perennial swing state.

Progressive advocates for criminal justice reform say restoring ballot access to convicted felons is a key step toward reentering society on equal footing. A 2019 Florida law requires felons to pay off all fines and restitution before their voting rights are restored.

Civil rights groups challenging the requirement—with the backing of Democratic lawmakers—say Judges Robert Luck and Barbara Lagoa should recuse themselves from the dispute because they were briefly involved with the controversy as members of the Florida Supreme Court. The third judge, Andrew Brasher, backed out of the case on separate grounds.

"As the first branch, it falls to Congress to oversee the federal judiciary," the senators wrote in letters to Luck and Lagoa. "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."

The statement keeps with the increasingly aggressive tack Democratic lawmakers have taken against Republican-appointed judges in politically sensitive cases. Otherwise powerless to stop the confirmation of President Donald Trump's judicial nominees, Democrats have brought pressure to bear on right-leaning tribunals with recusal motions, courthouse rallies, and pointed amicus briefs.

Lawyers defending the Florida law said the request was "frivolous."

"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," they wrote in legal filings.

In 2018 Florida voters enacted a state constitutional amendment to extend voting rights to felons, provided they have fulfilled "all terms of sentence." In turn, the Florida legislature passed a law clarifying that "terms of sentence" includes fees and compensation to victims. Governor Ron DeSantis (R.) asked the state supreme court to weigh in on the matter. Luck and Lagoa were present at oral arguments on the issue, but were confirmed to the 11th U.S. Circuit Court of Appeals before the court released its opinion.

The plaintiffs say ethics rules require Luck and Lagoa to recuse themselves, given the justices' involvement with the controversy on the state supreme court. That matter presents the same issues and arguments now before the 11th Circuit, the plaintiffs argued in a motion to disqualify. The motion also cites pledges the judges made to step back from cases involving the Florida Supreme Court during their confirmations.

Lawyers for the state counter that nothing bars judges from participating in a case raising questions they've previously dealt with, or even positions they once advocated. For example, Supreme Court Justice Stephen Breyer has participated in cases involving the federal sentencing guidelines, even though he was a lead reformer of those guidelines as a member of the U.S. Sentencing Commission. The case now before the 11th Circuit also involves legal questions the Florida Supreme Court did not touch.

Whatever the merits of the dispute, congressional involvement in a recusal controversy is rare and represents a new front in bullish Democratic efforts to rein in the judiciary. The letter's invocation of oversight strikes a particularly sharp note, raising questions as to what Democratic senators have in store for the courts if they retake control of the chamber.

Senate Minority Leader Chuck Schumer (D., N.Y.) prompted condemnation from Chief Justice John Roberts in March after he singled out Justices Neil Gorsuch and Brett Kavanaugh for criticism during a rally. The senator said the two Trump appointees would "pay the price" if they restricted abortion rights.

Likewise, a group of Democratic lawmakers led by Sen. Sheldon Whitehouse (D., R.I.) repeatedly alluded to public support for "restructuring" the Supreme Court in an amicus brief pressing the justices to dismiss a Second Amendment case.

Before his elevation to the federal bench, Brasher served as the top appeals lawyer for the state of Alabama. Since Alabama is participating in the case in support of Florida, Brasher said in a short statement that he had disqualified himself pursuant to a personal policy of recusing from cases in which Alabama participates.

The case is No. 20-12003 Jones v. DeSantis.

Published under: Florida