Trial lawyers defend U.S. judge against attacks by DeSantis, legislative leaders

Mark Walker struck down elements of a 2021 voter-suppression law

By: - April 7, 2022 4:01 pm

The U.S. District Court for the Northern District of Florida courthouse in Tallahassee.

It’s tempting to shrug one’s shoulders when politicians blast away at judges who rule against them — as when Gov. Ron DeSantis and legislative Republican leaders unloaded at U.S. District Judge Mark Walker after he struck down key portions of last year’s voter suppression law.

In fact, such attacks are dangerous, undermining faith in the rule of law and possibly even inspiring 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 in the Tallahassee Democrat on Thursday, defending Walker against the attacks.

“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 judicial branch,” Gustafson wrote.

“Judges are not allowed to defend themselves from such attacks. That is why the Tallahassee ABOTA Chapter is stepping forward to defend Federal District Court Judge Mark Walker,” he continued.

Life tenure insulates judges like Walker against political attacks — they can be removed from the bench only upon showings of misconduct. Conversely, the Code of Conduct for U.S. Judges limits their ability to respond.

Ultimately the appellate courts will decide if Judge Walker is right.

– James Gustafson Jr., American Board of Trial Advocates

It prohibits “public comment about the merits of a pending or impending matter … until the appellate process is complete. If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality.”

“In a word, judges are not allowed to speak publicly about their rulings,” Bob Jarvis, a constitutional law professor at Nova Southeastern University, told the Phoenix by email.

“U.S. Supreme Court justices break this rule all the time — it was one of the things that made Ruth Bader Ginsburg ‘notorious.’ Of course, the Code of Judicial Conduct does not apply to U.S. Supreme Court justices, so she actually wasn’t violating any rules,” Jarvis said.

And so ABOTA stepped in the respond to the attacks on Walker’s behalf, Gustafson wrote.

“Ultimately the appellate courts will decide if Judge Walker is right. That is the role of the judiciary in our constitutional system of government, and it is highly improper for our elected leaders to challenge Judge Walker’s motives or independence. Disagreeing on the merits is appropriate; personal attacks are not,” he wrote.

History of discrimination

In a ruling handed down on March 31, Walker struck down key provisions of SB 90, passed amid Donald Trump-generated conspiracy theories about the 2020 presidential election.

Specifically, he found violations of the U.S. Constitution and the Voting Rights Act in striking language requiring third-party voter-registration groups to warn prospective voters that the groups might not turn in their registration forms in time.

Also quashed was a ban on ‘line warming,” or supplying food and water to people waiting in line to vote, and limits on use of “drop boxes” where voters can deposit vote-by-mail ballots rather than entrust them to the U.S. Postal Service.

Walker cited a 20-year history of Republican-led election laws discriminating against Black people, including unfair roll purges and early voting restrictions calculated to harm Black turnout.

Given that track record, he invoked Section 3 of the Voting Rights Act in ordering the state to submit any future voting law changes during the next 10 years either to the court or the U.S. Attorney General for “preclearance” — meaning a review of whether they violate Blacks’ voting rights.

“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 disproportionately burdening Black voters, this court can no longer accept that the effect is incidental. Based on the indisputable pattern set out above, this court finds that, in the past 20 years, Florida has repeatedly sought to make voting tougher for Black voters because of their propensity to favor Democratic candidates.”

Gov. Ron DeSantis at a news conference Jan. 5, 2022.

The backlash soon followed. DeSantis denounced the ruling as “performative partisanship.”

“This order is highly unprofessional, inaccurate, and unbecoming of an officer of the court,” said Senate President 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 every four under previous legislation and another and requiring additional forms of ID.

Threat to 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 judicial branch,” Gustafson wrote.

Florida Senate President Wilton Simpson is shown during the organizational session on Nov. 17, 2020. Credit: Florida Channel, screenshot.

“Likewise, Senate President Simpson, himself not a lawyer, personally attacked Judge Walker by calling him unprofessional and unbecoming of a judge. Personally attacking a judge because one disagrees with a ruling is unprofessional and unbecoming of our elected leaders who swear an oath to uphold the Constitution, whether they are trained in the law or not.

Gustafson’s article doesn’t mention it, but House Speaker Chris Sprowls called Walker’s preclearance order “an egregious abuse of his power.”

The trial attorney offered this rebuttal:

“Anyone familiar with Judge Walker’s opinion, which covered 288 pages of factual and legal analysis, would understand how carefully he evaluated that evidence and applied it to the existing law, both against and in favor of the state’s positions.

Gustafson stressed that he wasn’t singling out Republicans — “ABOTA takes no position regarding the merits of the case. It has condemned statements made by politicians of both parties undermining the rule of law,” he wrote.

‘Threats and inappropriate communications’

But the Florida attacks could raise the temperate in an already overheated political environment featuring an increase in threats against the federal judiciary. The U.S. Marshals Service reports receiving 4,511 “threats and inappropriate communications” against federal judges and prosecutors during the last fiscal year.

That was up from 4,300 the year before, Bloomberg Law reported.

Efforts are underway in Congress to boost spending on judicial security and shield private information about judges from the public. This after a disgruntled litigant showed up at U.S. District Judge Esther Salas’ home in New Jersey and shot her son to death and wounded her husband.

An American Bar Association Journal report last October notes that four federal judges perished in attacks during the previous 40 years, not counting murders of family members.

In the Salas attack the FBI identified Roy Den Hollander, “a lawyer who had voiced his support for President Donald Trump and gained notoriety for filing anti-feminist lawsuits and firing off thousands of pages of misogynistic and racist screeds,” the Journal said.

Bob Jarvis. Credit: Nova Southeastern University

“We live in very polarized times, so it’s not surprising that politicians are no longer observing what used to be the ground rules (i.e., decisions could be criticized, but not the judges themselves),” law prof Jarvis told the Phoenix.

He cited ABA rule Rule 8.2(a):  “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

“It should be noted, however, that: 1) most politicians don’t really care about their law licenses (Bill Clinton lost his after his impeachment, for example, but went on to have a very lucrative post-presidency); and, 2) at least some people believe that Rule 8.2(a) is unconstitutional because it chills speakers in violation of the First Amendment,” Jarvis wrote.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.