January 17, 2000

Judge Rosa Rodriguez did the right thing

Victor M. Diaz Jr. Published Monday, January 17, 2000, in the Miami Herald

I have known Circuit Court Judge Rosa Rodriguez since we were classmates at Yale Law School. We are close friends, thus I am a biased observer of the coverage given her ruling in the Elian Gonzalez case. Nonetheless, the public should know some relevant facts regarding her continued participation in this case:

I believe that she would have loved to recuse herself from this case. Any intelligent observer knows that regardless of how she ruled, powerful people on both sides of this issue would have been upset It was a no-win situation for a young judge, with a promising career. The easy solution for her would have been to recuse herself and toss this political hot-potato to another judge.

I believe that she sought counsel as to whether she should recuse herself. As a judge, she is prohibited from disclosing whether she did this or not. However, the statement issued by the administrative office of the 11th Judicial Circuit clearly states the court's legal opinion that Armando Gutierrez's involvement as a volunteer spokesman for the Gonzalez family is not a basis for recusal.

If in fact Rodriguez had recused herself from this case, she would have been criticized for shirking her responsibilities. The courageous and correct thing to do under these circumstances was to keep the case, which she did.

The media have mischaracterized Rodriguez's decision as giving temporary custody to Elian's great-uncle. Her decision explicitly did not rule on the application for temporary custody. Instead, it's based on a long line of Florida cases that require a judge under compelling circumstances to act in the child's best interest to preserve the status quo until a full evidentiary hearing can be conducted on the merits of the custody dispute. Most of the legal critics who have commented on her opinion have not commented or disagreed with the findings. Why hasn't The Herald published her short opinion in full so that readers can form their own opinions?

There are many other facts about Rodriguez's life that might suggest a bias in favor of a decision to send Elian back to Cuba. She is anything but a conservative reactionary. One of our closest law-school friends is a close adviser to President Clinton, and the administration has ordered Elian's return to Cuba. Rodriguez's brother, too, is an employee of the federal government, which is actively trying to return Elian to Cuba. Should these facts have been disclosed? Would she had been asked to recuse herself on this basis had she ruled the opposite way? Would the media have criticized for failing to disclose a pro-government bias?

In the United States, there is a procedure for challenging judicial decisions and for challenging judges' recusal. Both procedures require a judicial process. Yet no one has appealed her decision, apparently recognizing the strength of her legal reasoning. Nor is there any suggestion that her participation in this case violated the canons of judicial ethics. Rather, there seems to be a concerted effort by those who disagree with the message contained in her decision to kill the messenger. Why the fear of letting the judicial process run its course?

I urge Rodriguez not to be intimated by those who would have her recuse herself in order to reverse her preliminary decision in this case. The rule of law must be defended against those who would use any available form of intimidation to accomplish unlawful purposes.

Fortunately, we have judges such as Rosa Rodriguez who stand up in the face political and media pressure to defend this basic principle of a free and democratic nation.

Victor M. Diaz Jr. is a lawyer in Miami.

Copyright 2000 Miami Herald



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