Ira Stoll recalls a verse from Exodus — translated in the New Berkeley Version of the Christian Bible as “Heap no abuse upon judges” — and notes that the temptation to excoriate judges over unwelcome rulings knows no place or era. Ken White at Popehat pens an explainer, “Is there anything unusual about Judge Curiel’s orders in the Trump University case?” Former U.S. Attorney General Alberto Gonzales kinda-sorta defends the propriety of litigants’ blasting judges, though in a left-handed way (“if I were a litigant who was concerned about the judge’s impartiality, I certainly would not deal with it in a public manner as Trump has, because it demeans the integrity of the judicial office and thus potentially undermines the independence of the judiciary, especially coming from a man who could be president by this time next year.”), drawing a response from Cassandra Robertson via Jonathan Adler. Eugene Volokh examines the no-not-even-close-on-current-evidence case for Curiel’s recusal. Earlier on the controversy here.
Meanwhile, journalists in Detroit have been recalling the story of the flamboyant, litigious, floppy-haired millionaire populist known for his willingness to insult judges and everyone else, who shoved aside the conventional pols to capture a major party nomination. Of course I’m referring to the 1998 run for governor of Michigan of attorney Geoffrey Fieger, a longtime Overlawyered favorite [Deadline Detroit, Zachary Gorchow/Gongwer]
And also relating to this year’s presidential race, I discussed the Libertarians’ ticket of Gary Johnson and Bill Weld and its attractions in an interview with Mona Charen for her Ricochet podcast “Need to Know” with Jay Nordlinger. More here.
P.S.: Where might a candidate have learned to rant against federal judges who don’t rule his way as “corrupt”? Maybe from New York Times columnist Paul Krugman.
12 Comments
Oh, that is funny, pretending that the current judicial system and judges have any integrity.
An honorable man has nothing but contempt for judges and the system as it currently operates.
Trump, in his own coarse manner, exposes the hypocrisy in contemporary jurisprudence.
If litigants have legal right to an impartial jury — why no right to an impartial government judge or prosecutor ??
Of course jury trials are rare, but always dominated by non-impartial government agents (judges, prosecutors, police,etc) Stacking juries is routine via voir dire… and jury instructions/control of jurors by judges is usually ecessive and unjust.
Non-jury trials are overwhelmingly controlled by biased government agents. Private litigants & defendants are at a huge disadvantage unless they have substantial financial resources and highly skilled attorneys. But overall, once one is in the government’s legal cross-hairs– the outcome is almost certain. Federal government conviction rates approach 100%.
You’re also not entitled to throw all the Mexican-Americans off your jury because you say things some of them may find offensive. We literally just heard from the Supreme Court on this topic a few weeks ago.
Race and ethnicity are not criteria by which a judge may be asked to recuse himself. If there were actual evidence of bias by the Judge, then we’d be hearing actual legal arguments about his specific rulings instead of broad attacks on his heritage. We’ve heard none.
You also seem to be conflating criminal trials with civil class actions; the two cases being heard by Judge Curiel are the latter and don’t involve prosecutors or the police.
The idea that judges decide cases based on their race or gender is not unique to Trump. It has also been promoted by the Obama and Clinton campaigns, and by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Ginsburg publicly attributed the Supreme Court’s Hobby Lobby and Ledbetter decisions to the fact that the judges who joined in them were male and thus had a “blind spot”:
http://goo.gl/wROiR4
In reality, these 5-to-4 decisions broke down along predictable ideological lines, and gender had no role.
In 2008, the Obama campaign and state democratic parties claimed the Supreme Court’s Ledbetter decision was due to the fact that the judges who joined in it were all male (although the decision in fact broke down along predictable ideological lines, with the 5 justices in the majority enforcing Title VII’s statute of limitations as written, and the 4 liberal justices interpreting it more generously to plaintiffs:
https://goo.gl/IV327w
Justice Sotomayor has implied that judges decide cases partly based on their ethnicity, in her famous “wise Latina” remarks.
I first heard of Geoffrey Fieger as Jack Kevorkian’s attorney, before Kevorkian self-destructed as a publicity-crazed kamikaze. As a candidate, Fieger immediately repudiated his work for Kevorkian, the one thing I was most inclined to hold in his favor.
If I were a litigant, I’d probably not want to criticize the judge as a practical matter – if he’s not biased, I’m wronging him, and if he IS biased, it’s just going to make things worse. On the other hand, if a judge is clearly wronging me, I should have every right to say so.
But this isn’t a one-way street against judges. DOMA was invalidated because the Supreme Court decided that the motive for passing it was pure hatred. IMO that’s worse than anything Trump said about this judge.
I wonder what the New Berkeley edition was translating? Certainly not the G-d given Hebrew original, where the object is “prince” or “leader”, not “judge.” Now it may be argued that many judges consider themselves princes, but that is not an opinion that is widely supported.
Sitting here in Oz I am struck by the pearl-clutching in the US legal fraternity and the law/media folks over Trump’s remarks about the Trump Uni case judge, Curiel.
I appreciate that members of the bench have already earned my respect by virtue of occupying the office. But it is possible for them to lose respect if they behave improperly and it shouldn’t be beyond the pale for litigants, particularly defendants, to notice that judges have behaved improperly. Curiel is an on-the-record supporter of that silly (to me) La Raza group, he’s been the judge on the trial for months so Trump’s been well able to form a view about his attitude toward the defendant, and his recent order for release of docs was done so hastily he forgot to order redactions on the docs first – not exactly sterling work by his honour.
Litigation lawyers talk this way about judges all the time. It isn’t a surprise an experienced litigant like Trump would adopt the same approach.
the thing with Trump, however, is he pays superhardball. Any order Curiel now makes that’s unfavourable to Trump will be tarred as being motivated by bias. Big ol’ Mexican bias. And the judge has only himself to blame by being out and proud about La Raza.
On Trump’s erroneous conflation of the left-wing national activist group La Raza with the unrelated locally named La Raza Lawyers Association, which bills itself as California’s Latino bar group, see among many others Leon Wolf:
http://www.redstate.com/leon_h_wolf/2016/06/03/dishonest-attempt-associate-gonzalo-curiel-la-raza/
Hi Walter, that’s the group I meant – the latino La Raza bar association group. It strikes me, in Oz, and really bad practice for a sitting judge to be a member of such a group. By all means speak at an event but don’t be a member – that’s bias right there and it’s not unfair or unreasonable for litigants to notice.
And it’s not unreasonable for litigants who feel they’re getting a raw deal on various procedural orders to wonder what the motivation for the lousy procedural approach might be.
Trump’s actual words (not shorn of their context a la Anderson Cooper and, sadly, even you a bit) – were something like ‘we have a judge who’s a hater of Trump’. You’re not seriously trying to argue Curiel doesn’t hate Trump are you? Sure he does. Why is this trial even happening? There’s isn’t even a lead plaintiff any more! I think we have every right to wonder about Judge Curiel’s bona fides towards the defendant.
That’s my 2 cents.
I will not speak to the customs in Australia, but there is plenty of evidence to contradict Donald Trump’s claims that there was anything irregular in Judge Curiel’s 1) involvement in the local chapter of a Latino lawyers’ group (not the left-wing national one with a similar name), 2) declining to recuse himself for bias; 3) allowing a substitution of lead plaintiff; 4) dismissing many but not all of the Trump University claims on summary judgment.
1) It is routine for judges in the U.S. to maintain involvements in Irish-American, Italian-American, African-American, etc. bar groups. Not only is there no requirement of recusal — for example, it was ruled that judges who belonged to a Catholic group of this sort properly did not recuse themselves from a lawsuit against the local archdiocese — but the Second Circuit upheld sanctions against lawyers who asked for the recusal of an Asian-American federal judge in a case with an Asian ethnic angle.
2) The recusal issues are dealt with in a more recent Overlawyered post with associated reader comments:
http://overlawyered.com/2016/06/non-close-case-recusal/
Opinion on this among legal practitioners I know is essentially unanimous, which may have a lot to do with why Trump’s lawyers have not moved for recusal and show no plans to do so.
3) Substitution of lead plaintiff occurs routinely in a consumer class action setting. The judge ordinarily makes an inquiry as to whether the named plaintiffs are indeed typical of others’ claims and did so here. I have seen no one conversant with American class action practice make a serious case that Curiel should have shut the case down at this point.
4) Likewise, while dismissal on summary judgment is a valuable procedural step, it is by no means automatically granted, and Curiel appears to have made exactly the sort of issue-by-issue inquiry called for, with Trump securing dismissal on many claims but not on those where the nature of damages (refund) combined with relatively plaintiff-friendly state law. A lay version here:
https://www.washingtonpost.com/news/fact-checker/wp/2016/06/07/sorry-donald-trump-the-mexican-judge-was-just-following-the-law/
Plaintiff’s-side attorney blogger Max Kennerly, a specialist in class actions, analyzed Curiel’s rulings in detail in a recent post, concluding that “Judge Curiel is doing his job like a normal judge, issuing rulings consistent with the case law.”
http://www.litigationandtrial.com/2016/06/articles/attorney/consumer-protection/curiel-trump/
It’s hard for me to identify any error in his conclusion.
See also this morning’s new post at Overlawyered:
http://overlawyered.com/2016/06/non-close-case-recusal/