Donald J. Trump has taken out after U.S. District Judge Gonzalo Curiel, who happens to be the judge in Low, et al. v. Trump University, LLC, et al. and Cohen v. Donald J. Trump. The basic facts, for anyone who hasn’t been following the situation, are laid out well in Why Is Donald Trump So Angry at Judge Gonzalo Curiel?, written for The Atlantic on June 3, 2015 by Matt Ford.
Mr. Trump is a jackass, going after the judge in his case in public while it’s pending. Judge Curiel holds a lifetime appointment. The case is his, unless he recuses or gets disqualified. And about federal judges, there’s an old joke: What’s the difference between G-d and a federal judge? G-d doesn’t think he’s a federal judge.
Recusal happens when a judge says “I’m outta here,” while disqualification arises when another judge grants a motion to remove a judge. 28 U.S.C. § 455 (Disqualification, judge, or magistrate judge) governs a judge’s obligation to recuse. It’s a seven part statute. Subpart A instructs judges to recuse whenever their impartiality “might reasonably be questioned.” Subpart B identifies several specific circumstances which mandate recusal. Basically, judges must avoid matters in which they have a personal “bias or prejudice,” prior involvement, or—and this circumstance bring in family “within the third degree of relationship”—a financial stake in one of the parties, or in the outcome.
Part C directs judges to know their family members’ financial interests. Part D provides definitions, Part E limits conflict waivers, while Part F provides a means for avoiding recusal if a judge has devoted “substantial judicial time” before a conflict is discovered.
28 U.S.C. § 144 addresses disqualification procedures. It provides for another judge deciding the disqualification issues when a “timely and sufficient” affidavit has been filed alleging bias or prejudice.
Mr. Trump, in the last couple of weeks or so, has repeatedly said Judge Curiel must recuse because of his Mexican heritage and the fact, per Mr. Trump, that he is going to “build a wall.” The position is patently absurd, and unsupported by precedents.
First, we know nothing about Judge Curiel’s views on the wall. Mr. Trump assumes people whose people were Mexican oppose the wall. In the same way in which Justice Clarence Thomas and would be POTUS Dr. Ben Carson don’t adhere to positions taken by a majority of the African-American community, there are surely people of Mexican descent who favor Mr. Trump and, perhaps, the wall.
Second, the Low case has been pending since April 30, 2010. Judge Curiel has been the judge for years, and has been a man of Mexican descent since 1953. Judge Curiel’s predecessor on the case was Irma Gonzalez, another person of Mexican descent for her whole life, the first Mexican-American female federal judge, and a Ronald Reagan appointee.
Both judges have entered rulings which have favored Mr. Trump and Trump University. In Judge Gonzalez’s case, her ruling on a major issue—whether for defamation purposes Trump University was a public figure—was patently wrong. A unanimous appellate court panel reversed the ruling.
28 U.S.C. § 144 requires prompt action. Underlying it is the notion that if a basis exists for disqualifying a judge, the process needs to happen without any overlays involving court rulings. No gaming the system allowed! Here, of course, it’s all about the rulings, for there is no legitimate basis for disqualifying Judge Curiel. (By the way, with all of the huffing and puffing no motion to disqualify has yet been filed.)
So when might a disqualification arise under circumstances like those present here? In United States, et al. v. Alabama, et al. the 11th Circuit Court of Appeals addressed an attempt to disqualify U.S. District Judge U.W. Clemon—Alabama’s first African American federal judge—from hearing a civil rights case. The appellate court did disqualify Judge Clemon, but only because of his prior involvement: (a) in a related lawsuit; (b) as a state legislator with the very laws which were being challenged; and (c) with parties—Auburn University officials—whose positions required legislative approval.
As for Judge Clemon’s work on civil rights issues or the fact that he was African American, the court quoted from an opinion by Judge A. Leon Higginbotham, Jr., who was a District Judge in Pennsylvania and a judge on the 3rd Circuit Court of Appeals for 16 years. Here’s what Judge Higginbotham wrote:
It would be a tragic day for the nation and the judiciary if a myopic vision of the judge’s role should prevail, a vision that required judges to refrain from participating in their churches, in their non-political community affairs, in their universities. So long as Jewish judges preside over matters where Jewish and Gentile litigants disagree; so long as Protestant judges preside over matters were Protestant and Catholic litigants disagree; so long as white judges preside over matters where white and black litigants disagree, I will preside over matters where black and white litigants disagree.
That tragic day to which Judge Higginbotham refers broadly is not upon us. It might be, though, if we choose Donald J. Trump as our next President of the United States of America.