Borrowing a page from Trump, DeSantis attacks the judge for not getting his way, drawing reprimands
It’s tempting to shrug when politicians lash out at judges who rule against them — like when Gov. Ron DeSantis and legislative Republican leaders unloaded on U.S. District Judge Mark Walker after overturning key parts of last year’s voter suppression law.
In fact, such attacks are dangerous, undermine confidence in the rule of law and may even inspire attacks on judges and prosecutors.
James Gustafson Jr., president of the Tallahassee Chapter of the American Board of Trial Advocates (ABOTA), wrote an opinion piece published Thursday in the Tallahassee Democrat, defending Walker from attack.
“When elected officials engage in personal attacks on judges for their analysis of our laws, they undermine the rule of law, threaten the independence of the judiciary, and undermine the proper administration of the judiciary,” Gustafson wrote.
“Judges are not allowed to defend themselves against such attacks. This is why the Tallahassee ABOTA Chapter is stepping forward to defend Federal District Court Judge Mark Walker,” he continued.
Lifetime tenure protects judges like Walker from political attack — they can only be removed from office for proven misconduct. Conversely, the Code of Conduct for US Judges limits their ability to respond.
It prohibits “public comment on the merits of a pending or impending case…until the appeal process is complete. If the public comment relates to a matter from the judge’s court, the judge should take particular care that the comment does not undermine the public’s confidence in the integrity and impartiality of the judiciary. »
“In a nutshell, judges are not allowed to speak publicly about their decisions,” Bob Jarvis, a constitutional law professor at Nova Southeastern University, told Phoenix via email.
“U.S. Supreme Court justices break this rule all the time – it’s one of the things that made Ruth Bader Ginsburg ‘notorious’. Of course, the Code of Judicial Conduct does not apply to justices of the Supreme Court of the United States, so she didn’t actually violate any rules,” Jarvis said.
“Ultimately, the courts of appeal will decide whether Judge Walker is right. That is the role of the judiciary in our constitutional system of government, and it is utterly inappropriate for our elected leaders to challenge the motives or Walker’s independence. Dissenting on the merits is appropriate; personal attacks are not,” he wrote.
History of discrimination
In a stop delivered on March 31, Walker invalidated key provisions of SB 90, adopted amid conspiracy theories generated by Donald Trump about the 2020 presidential election.
Specifically, it found violations of the U.S. Constitution and Voting Rights Act in stark language requiring third-party voter registration groups to warn potential voters that the groups might not turn in their voter registration forms. registration on time.
A ban on ‘warming the line’ or providing food and water to people queuing to vote was also overturned, along with limits on the use of ‘drop boxes’ where voters can drop off mail-in ballots rather than entrusting them to the United States. Postal service.
Walker cited a 20-year history of Republican-led election laws that discriminate against blacks, including unfair purges and early voting restrictions calculated to hurt black turnout.
In view of this record, he invoked Division 3 of the Voting Rights Act by directing the state to submit any future changes to election law within the next 10 years, either to the court or to the United States Attorney General, for “preclearance,” that is, a review to determine whether they violate black suffrage.
“Once is an accident, twice is a coincidence, three times is a pattern,” he wrote.
“At some point, when the Florida Legislature passes law after law imposing a disproportionate burden on black voters, this court can no longer accept that the effect is incidental. Based on the incontrovertible pattern set forth above, this court finds that over the past 20 years, Florida has repeatedly sought to make it harder for black voters to vote because of their propensity to favor Democratic candidates. .
The backlash quickly followed. DeSantis denounced the decision as “performative partisanship.”
“This order is highly unprofessional, inaccurate and unbecoming of an officer of the court,” said Senate Speaker Wilton Simpson.
Neither mentioned it, but Walker sided with the state on two provisions — one requiring voters to request mail-in ballots every two years instead. of all four under previous legislation and another requiring additional identification.
Threat to the rule of law
The governor’s response “threatens the rule of law. As a lawyer and an officer of the court, the governor’s statement was not only wrong, but undermines the independence of the judiciary,” Gustafson wrote.
“Similarly, Senate Speaker Simpson, himself a non-lawyer, personally attacked Judge Walker as unprofessional and unworthy of a judge. Personally attacking a judge for disagreeing with a decision is unprofessional and unbecoming of our elected leaders who are sworn to uphold the Constitution, whether or not they are trained in the law.
Gustafson’s article doesn’t mention it, but House Speaker Chris Sprows called Walker’s preclearance order “a flagrant abuse of his power.”
Trial counsel offered this rebuttal:
“Anyone familiar with Justice Walker’s opinion, which covered 288 pages of factual and legal analysis, would appreciate how carefully he assessed this evidence and applied it to existing law, both against and for the positions of the state.
Gustafson stressed that he was not singling out Republicans — “ABOTA takes no position on the merits of the case. He condemned statements made by politicians from both parties undermining the rule of law,” he wrote.
“Threats and inappropriate communications”
But the Florida attacks could raise the temperature in an already overheated political environment characterized by an upsurge in threats against federal justice. The US Marshals Service reports receiving 4,511 “threats and inappropriate communications” against federal judges and prosecutors in the past fiscal year.
This was up from 4,300 the previous year, Bloomberg Law reported.
Efforts are underway in Congress to increase judicial security spending and protect judges’ private information from the public. This after a disgruntled litigant showed up at US District Judge Esther Salas’ home in New Jersey and shot and killed her son and injured her husband.
A American Bar Association Journal Report last October notes that four federal judges have perished in bombings over the past 40 years, not counting the murders of family members.
During the Salas attack, the FBI identified Roy Den Hollander, “a lawyer who had expressed support for President Donald Trump and gained notoriety for filing anti-feminist lawsuits and publishing thousands of pages of screeds misogynist and racist,” the Journal said.
“We live in a very polarized time, so it’s no surprise that politicians no longer follow what used to be the ground rules (i.e. decisions could be criticized, but judges could not. themselves),” law professor Jarvis told the Phoenix.
He quoted Rule 8.2(a) of the ABA Rule: “An attorney shall not make any statement which he knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, judicial officer, or public advocate., or a candidate for election or appointment to judicial or judicial office”.
“It should be noted, however, that: 1) most politicians don’t really care about their law licenses (Bill Clinton lost his after impeachment, for example, but then had a very lucrative post-presidency ); and, 2) at least some people believe Rule 8.2(a) is unconstitutional because it chills speakers in violation of the First Amendment,” Jarvis wrote.
–Michael Moline, Florida Phoenix