Donald Trump went into full attack mode against Judge Gonzalo Curiel, who is presiding over the case against Trump University. You can find here a video, with transcript, of Trump defending his contention that a “Mexican” judge is a problem for him because of Trump’s outspoken opposition to illegal immigration from Latin America. I have a few comments to make.
First, if I were Trump’s attorney and was dealing with a judge or seemed unduly hostile to me or my client, I would definitely think about making a motion saying that the judge’s hostility derives from my attacks against a special interest group of which the judge is a member ( in this case, “Hispanic Americans”) and that he should recuse himself if for no other reason than “the appearance of impropriety.”
The basis for my motion would be the Code of Conduct for United States Judges, which states explicitly that “Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.” (Emphasis added.)
Please note the language I emphasized. It isn’t necessary that the judge is actually behaving with impropriety. It is sufficient that his conduct appears improper, something that impairs confidence in the judiciary as a whole, regardless of the judge’s actual motives and conduct:
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.
Because Trump is so inflammatory, let’s step back a little and try to imagine a different situation that might make things clearer. Imagine that Trump is actually Trumpberg, a Jew who’s employee is suing him for sexual harassment. Imagine too that Trumpberg’s case is assigned to Judge Mohamed Mohamed, an American of Palestinian descent.
Although the lawsuit has nothing whatsoever to do with either Israel or the Palestinians, Trumpberg and his lawyer can’t help noticing that the judge rules against Trumpberg on every single initiative he brings or every defense he makes. Unless Trumpberg and his lawyer are complete crooks, malfeasors, or incompetents, at a certain point they’re going to say “This guy has it out for Trumpberg because he’s a Jew.”
Unless the judge’s rulings are so obviously an abuse of discretion that a preschooler could discern a problem, Trumpberg’s only recourse is to make a motion asking the judge to recuse himself because of the appearance of impropriety. He’s not saying that the judge is biased, but that he appears biased.
Let me be the first to say that this motion will fail because a judge will never concede that he has a bias problem or an appearance of bias problem. But it is a valid motion and if you’re losing every initiative anyway, you may as well bring it. And that’s sort of what Trump is doing, only being Trump he’s doing so loudly and publicly. So no, it’s not a totally crazy move; it’s the desperate move of someone who, rightly or wrongly, feels that he has a valid case over which a biased judge presides.
Second, I’m absolutely certain that Judge Curiel is in fact biased against Trump. That Curiel is of Mexican origin isn’t the problem. The problem is that he’s a Democrat judge appointed by a Democrat administration.
Those two facts do not mean that Judge Curiel is not, in most ways, an estimable man, who pays his bills, works in soup kitchens, and raises his children with a perfect balance of love and discipline. They do not mean that he is not an intelligent or hardworking man. They do not mean that he is a corrupt man in terms of accepting money in exchange for favors. Indeed, his bio suggests that he was diligent in going after drug cartels, many of which prey on Southern California’s Hispanic community, where he worked as a Federal prosecutor. If Judge Curiel is a nice man, and there’s no reason to believe he’s not, I’d probably enjoy talking with him for a few minutes at a cocktail party and, if he also has a nice wife and nice kids, I’d be happy to see him move into our neighborhood.
But (and yes, there’s always a “but” after I’ve said nice things like thing). . . .
But I know these Democrat judges, having spent almost thirty years litigating in the San Francisco Bay Area. They are fine judges if the case does not ping their political antennae. Thus, if two little old ladies are fighting it out, they’ll be fair. Or if two banks are fighting it out, they’ll still be fair.
Bad things happen, though, when one of the parties is from a class disfavored under the Democrat paradigm, e.g., banks; super-wealthy people who aren’t, like Tom Steyer, Mark Zuckerberg, or George Soros, bankers for the Left; large corporations; officers in large corporations; employers being sued by an employee, etc. In those cases, the moment that disfavored class member walks into court, he, she, or it is a marked target.
The bias against the enemies of the Left is overwhelming in a courtroom presided over by a Leftist judge. You might win, provided that all the facts and all the law run your way, but even if the facts and law support you overwhelmingly, you shouldn’t count on it. I’ve worked on at least four cases in which the corporate or banking defendants did everything by the book, while the individual plaintiffs were proven beyond a shadow of a doubt to have committed actual fraud or indefensible stupidity . . . and still lost.
I figured out this judicial bias problem back in the 1980s, when I was still more than a decade away from switching party affiliation. I knew judges were a problem when I was cheering Bill Clinton’s presidential victory. That judges were biased against the rich and corporate was deep in my bones when I signed on to MoveOn.org, which was trying to derail Clinton’s impeachment for defiling the oval office and lying under oath. And I really loathed judges for being so hostile to banks and other monied parties when I was still convinced that Anita Hill was telling the truth. The reality was that I mostly worked for defendants in civil cases in the San Francisco Bay Area, and that meant I mostly lost. (And if you’re wondering, I’m pretty honest about my clients’ cases, and know a dog or a fraud when I see one.)
So the problem isn’t that Judge Curiel is Mexican, although his background might have something to do with his party affiliation. The problem is that he’s a Democrat and Trump is correct that he will never get a fair trial in that courtroom — something that’s true whether Trump ultimately deserves to be found liable or not.
Does the above rant mean it was smart for Trump to make these statements publicly? No. It was dumb, because it created a fecal storm that allows the media to divert attention from the mountains of evidence about Hillary’s corruption, her national security violations, and the very real possibility that America’s spies were exposed because of her selfishness. (And it’s no surprise that those who loved Plamegate seem uninterested in Hillary-gate.)
Nevertheless, dumb or not, it did my heart good to see someone openly attacking a Democrat judge because these judges deserve to be attacked. They use their courts for politics over justice whenever the opportunity arises. Perhaps Judge Curiel isn’t that man, and he has been fair, but overall the system is stacked against disfavored parties in Democrat judge’s courtrooms.