Accepting Trumpian Justice Is A Fool’s Errand
Donald Trump wants to build a wall between the United States and Mexico. Donald Trump wants to ban Muslims from entering the country. This means any Mexican or Muslim judge will be biased against him.
The question that should be asked is are judges who are members of professional organizations that are organized based on ethnicity/race/religion be disqualified from any case in which someone who has made negative statements about that ethnicity/race/religion is a litigant? The answer is obviously no.
Italian-American, Irish-American, French-American, and Women’s Bar Associations and similar groups serve that purpose. Trump’s ramblings about the judge in his case being in a Mexican group and therefore unable to do his job violate much of the Constitution in that he presupposes ethnicity, gender or race as disqualifying and prejudicial in and of themselves. Trumpian justice means perception is a basis for either appeal or recusal. It’s not. Hugo Black was a member of the KKK. He also voted to desegregate schools.
Justice Alito is a member of the Knights of Columbus. Should he be disqualified from hearing abortion-related cases? You’re a woman judge and I am a man in a divorce case so you should recuse yourself. Absurd. You are a black judge and I am white, so you will be biased against me. Nonsense. You are Russian and I am Polish, so you should recuse yourself over historical ethnic disagreements. Who else wants to play?
Is this case even about race? Are the plaintiffs Hispanic? This case is about whether or not Trump defrauded students of a “Trump University.” I assume that Trump was an equal opportunity fleecer, and took anyone’s money whose check would clear.
Trumpian justice possibly looks to discredit the judge because he knows he can’t win the suit on merit. Perhaps there is a case here, and this is subterfuge he’s able to amplify as the GOP nominee to distract from the actual case.
Curiel is biased. Let’s get Judge Fong. Nope, Chinese. Biased. Let’s get Judge Nebuli. Nope, Arab. Biased. Let’s get Judge Simpson. Nope, Cruz supporter. Biased. Let’s get Judge Campbell. He’s from Scotland and he’s against BREXIT. Biased. Let’s get Judge Williams. Clinton appointee. Biased. Judge Lawson? Obama appointee. Biased. Wait. How about Judge Richardson? He was nominated by Bush. Biased. Wait, what was this case about?
The judge is the sole arbiter, within his courtroom, as to whether or not to recuse himself. In order to prove bias, there must be a record to demonstrate bias. In order to have a record, there must be a trial, or a show of materiality based on pre-trial rulings. So, unless Curiel suddenly decides to recuse himself, and of course this is what the goal of Trumpian justice is, then the trial will go forward with Curiel presiding.
Trump can appeal, but an Appeals Court is not going to listen to: “He’s Racist. He’s biased.” If Trump and his attorneys really wanted to challenge Curiel for bias, they’d file to move for disqualification, or a peremptory challenge at the court reporters office.
Judge Oliver? He’s the Trump for Nevada head fundraiser. Perfect! Absolutely no bias there!