All ten Democrats on the Senate Judiciary Committee have signed their names to two extraordinary letters demanding that Eleventh Circuit judges Robert Luck and Barbara Lagoa explain to them how they (Luck and Lagoa) can take part in the Eleventh Circuit’s pending en banc proceedings in Jones v. DeSantis. (Here is the letter to Luck, and here is the letter to Lagoa.)
The two letters are a brazen exercise in bullying federal judges, and they reflect a profound confusion about Congress’s proper relationship with the federal judiciary in our constitutional system of separation of powers. Further, they constitute illicit ex parte communications with federal judges regarding motions pending before them.
First, some background:
In November 2018, Florida voters adopted Amendment 4, a state constitutional amendment that restores the voting rights of Floridians with felony convictions (other than for murder or sexual offenses) after they complete all the terms of their sentence. Consistent with representations that sponsors of Amendment 4 made to the Florida supreme court in getting the amendment approved for the ballot, the Florida legislature enacted in June 2019 a statute (SB 7066) that specified that completion of all terms of a sentence included full payment of legal financial obligations ordered by a court as part of the sentence.
In August 2019, Governor Ron DeSantis requested an advisory opinion from the Florida supreme court whether the term “completion of all terms of sentences” in Amendment 4 encompasses financial obligations imposed by the court in the sentencing order. In his request, DeSantis noted pending federal constitutional challenges to SB 7066 and specified that he was “not ask[ing] this Court to address any issues regarding” those challenges.
A month later, President Trump announced his intention to nominate Luck and Lagoa, both of whom were then sitting on the Florida supreme court, to the Eleventh Circuit. Their confirmation hearings took place on October 16, and they were confirmed by the full Senate about a month later (November 19 for Luck, November 20 for Lagoa).
On November 6, the Florida supreme court heard oral argument on Governor DeSantis’s request for an advisory opinion. Luck and Lagoa took part in the oral argument. But they were no longer on the Florida supreme court when it rendered its advisory opinion in January 2020.
In Jones v. Desantis, the en banc Eleventh Circuit is now considering the federal constitutional challenges to SB 7066—the very issues that Governor DeSantis made clear were not part of his request for an advisory opinion. The plaintiffs in the case have filed a motion to disqualify Luck and Lagoa, and the state has just filed its opposition to that motion.
For what it’s worth, my initial take on the disqualification motion is that two large points cut strongly against it: the Florida supreme court case concerning DeSantis’s request for an advisory opinion is not the same “proceeding” or “case” as Jones v. DeSantis, and it did not involve the same issues.
Now let’s look at the letters from the Senate Democrats. Each letter has the same closing paragraph:
As the first branch, it falls to Congress to oversee the federal Judiciary. That oversight includes a responsibility to ensure that federal judges honor their commitments to the Senate and the public and follow all applicable rules and codes of judicial conduct. Consistent with the 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.
This paragraph is deeply confused about the constitutional separation of powers. Congress does not possess a general authority “to oversee the federal Judiciary.” Congress does (I think) have authority to enact conflict-of-interest rules for federal judges, and that legislative authority would include the ability to explore how well the rules that it has enacted are working. But even apart from the fact that minority members of a Senate committee can’t invoke the authority of the committee (much less of Congress), that very limited ability would not remotely justify the Democrats’ unprecedented demand that Luck and Lagoa explain to them their participation in Jones v. DeSantis.
Further, the Democratic senators have sent Luck and Lagoa their statements of support for plaintiffs’ motion to disqualify at the very time that motion is pending before Luck and Lagoa. The senators did not seek the Eleventh Circuit’s permission to contact the judges on this matter, nor did they even send counsel in Jones v. DeSantis copies of their letters. That means, as Eleventh Circuit chief judge William Pryor has informed the parties in the case, that the letters are “ex parte communications” to Luck and Lagoa on the merits of that motion.
The rules of professional conduct for lawyers bar lawyers from making unauthorized ex parte communications to judges—communications, that is, outside of the presence of the opposing party. (Each state has its own set of rules, but most track the ABA’s Model Rules of Professional Conduct, which set forth the bar on ex parte communications in Rule 3.5(b).) Other than Feinstein, every Democratic signatory of the letters is a lawyer. If they are current members of a bar, they should be subject to discipline for their violation of the ban on ex parte communications.
I hope that the Chief Justice (who some think was successfully bullied by one of the signatories, Sheldon Whitehouse, in the Court’s Second Amendment case last term) will find the occasion to defend the legitimate institutional interests of the federal judiciary.