“The less you say, the better.”

That was the advice I received from the judge I clerked for about orders on motions for recusal. This is good advice that 11th Circuit Judges Barbara Lagoa and Robert Luck should heed before responding to Senate Democrats’ astonishing political attack on their judicial independence.

As Ed Whelan, president of the Ethics and Public Policy Center, explains here, all the Democratic members of the Senate Judiciary Committee have signed letters to two Trump-appointed judges on the 11th Circuit demanding that they recuse themselves from a case from Florida.  

The case involves a challenge to a Florida law that requires felons to complete all the terms of their sentences, including paying restitution, before their right to vote is restored.

The senators figure that because the judges are appointed by Republicans, they’ll uphold a law that Democrats don’t like, and if they can get these judges off the case, there’s a better chance that the law will be struck down. Pure politics.

As Whelan explains, these letters are “a brazen exercise in bullying federal judges [that] reflect a profound confusion about Congress’s proper relationship with the federal judiciary in our constitutional system of separation of powers.”

They’ve already had some success, however. They sent a third letter to Judge Andrew Brasher, and he chose to recuse, although he did not need to.

To briefly rehash the issues: The Judiciary Democrats argue that Lagoa and Luck should recuse themselves because when they were justices on the Florida Supreme Court, they asked questions during oral argument about the constitutionality of this law. Critically, they did not decide that case and it did not involve the same legal issues as this one.

As for Brasher, before he was appointed to the bench, he worked at the Alabama Attorney General’s Office. The Alabama Attorney General’s Office is not a party to this lawsuit, but it filed a friend-of-the-court brief expressing its support for the law. Brasher decided that he should recuse from any and all cases involving the Alabama Attorney General’s Office for two years.

That position, as he explains, is not required by any rule. 

Brasher’s position was a principled one, albeit overly cautious. But coming after the Senate Democrats’ letter, it gives the impression that he was cowed. 

Lagoa and Luck, for their part, do not need to recuse. The Code of Judicial Conduct, which includes a list of situations in which judges should recuse, says among other things that a judge should recuse if he or she participated in or expressed an opinion about “the particular case in controversy.” This is not the same case, and merely asking questions is not an expression of an opinion about it.

Even under the Supreme Court’s much-maligned opinion in Caperton v. A.T. Massey Coal, which expanded the grounds for recusal, Lagoa and Luck are in the clear. In that “exceptional case,” the judge had to recuse because someone with a stake in the outcome spent more than $3 million on the judge’s election campaign—more than all the money spent by all his other supporters. We are far from that case, here. 

But putting aside the merits of the demand for their recusal, I write separately to warn the judges against letting the Democrats drag them into the political mud. It could happen entirely by accident even if—especially if—the judges have very good intentions. 

The judges are in a “damned if you do, damned if you don’t” scenario. There’s not a thing they can say to get the dogs called off. If they write long, thoughtful responses, every line will be twisted, bent, and used as fodder for the Democrats’ press releases.

If they don’t recuse (and they shouldn’t), the press releases will be full of smarmy, personal attacks on their integrity and independence. If they do recuse, the press releases will be full of self-congratulatory language that will only spur more attacks by Democrats who think they can, as Whelan says, bully judges into giving them the results they want regardless of whether the law supports it.

Don’t let the Democrats’ assault on the judges’ independence fool you; it is still the case that judges are presumed to be impartial. In the absence of evidence suggesting otherwise—and here there is none—the judges have no obligation to defend that presumption. In fact, to write an opinion defending it might be perceived as conceding the Democrats’ hidden premise. Do not do that. 

Chief Justice John Roberts dissented in Caperton, saying that expanding recusal from specific and objective criteria, like when the judge has a financial interest in the case, to a vague and amorphous inquiry into bias “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

The same is true when judges engage with, and therefore lend support to, those groundless claims. If Lagoa and Luck write long responses engaging with the letters, they will only give their attackers more ammunition.

With this in mind, the judges should remember that less is more, and that recusal is a decision that rests squarely—and entirely—within their sound judgment. No one can make the choice for them.

If the judges rightly decide not to recuse, they should confine their responses to the barest minimum required by Caperton. To do any more will only play right into their attackers’ hands.

When politicians play games with the courts, the courts’ only winning move is not to play.

This article by GianCarlo Canaparo first appeared in The Daily Signal on July 24, 2020.

Image: Reuters.