Daniel P. Neelon and Caroline Schmittdiel,
The Daily Record Newswire
In an election year of equal opportunity hyperbole, presidential candidate Donald Trump’s comments in late May and early June about U.S. District Court Judge Gonzalo Curiel — suggesting that his “Mexican” heritage creates an “absolute conflict” precluding him from presiding over the Trump University class action suit — were certain to ignite strong feelings, fears and days of seemingly endless talking-head debates.
Unfortunately, few if any of those debates intelligently separated the rational from the irrational and the legally permissible from the legally impermissible in the “bias” allegations.
Reflecting on those differences is a valuable exercise in recalling who we are as a people, the principles of our human relationships with each other and our government upon which the Founding Fathers created this nation, and how those principles should guide our relationships with the judicial branch.
In the Declaration of Independence, Thomas Jefferson wrote the Founding Fathers’ understanding of the rights of and rightful relations between human beings underlying their desire to form a new nation: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Since 1791, the Fifth Amendment has guaranteed every individual’s right not to be deprived of life, liberty or property without due process of law. The 14th Amendment further provides: “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”
In a nation founded upon and governed by these self-evident truths, inalienable rights and legal principles, there are two major reasons that our judiciary should be comprised of men and women of every race and ethnicity in our country who have the desire, education, experience and ability to qualify for appointment.
First, absent such diversity, the unrepresented societal groups reasonably question whether our government is treating them in a manner that infringes materially on their inalienable rights to liberty and the pursuit of happiness (i.e., to become judges if they so desire) and on their equal protection rights (i.e., as persons subject to “the law”).
That lack or loss of faith in turn can drive a lack of respect for and trust in the judicial branch and the very laws that it interprets, applies and enforces.
On the other hand, seeing a judiciary that demonstrates a diversity of gender, race and ethnicity provides a reassurance to each group that the system is not rigged against them.
Further, it stands to reason that if the law is the same regardless of the gender, race or ethnicity of the judge applying it, then the law is more clearly a trustworthy institution that applies equally to each such group and can be respected equally by each group. That diversity demonstrates that we are a nation governed primarily by laws rather than by individuals.
Second, we the people cannot refuse to accept the legitimate legal authority of any particular judge to preside over cases based on that person’s race, ethnicity or gender, unless we reject the “self-evident truth, that all men are created equal.” A person’s race and ethnicity are determined upon a person’s creation. They are not beliefs or biases that one acquires while wandering life’s highways and byways and interacting with fellow travelers.
If we accept the self-evident truths that defined the founding of this country and the content of its Constitution, we cannot believe that any particular judge otherwise qualified by legal education, training, experience and acumen lacks the legitimate authority or capability to preside over a case merely based on his or her race, ethnicity or gender.
Bias and prejudice exist, but they result from information and experiences acquired over one’s life through interactions with and pressures from family, community, education, friends and associates. One’s race or ethnicity alone cannot create bias or prejudice. No child is born with beliefs about Mexico, fences or illegal immigrants; rather, a child essentially knows about hunger, thirst, temperature, pain and immediate sensory perceptions.
Moreover, as a matter of humanity, attacking someone on the basis solely of his race, ethnicity or sex is one of the most personally hurtful actions that one person can take against another. These characteristics form the core of a person’s unchangeable genetic essence from birth.
Accusing someone of being bad, deficient or inadequate on the basis of such genetic factors sends an arrow to the heart that says, in effect: “You’re bad to the core.” Yet, a true American, by core foundational principle, believes in the “self-evident truth, that all men are created equal … .”
Not surprisingly, federal courts have sanctioned attorneys for suggesting that a judge’s race or ethnicity alone produced an unfair bias. See, e.g., MacDraw, Inc. v. CIT Group Equipment Financing, Inc., 138 F.3d 33, 36-37 (2d Cir. 1998) (upholding sanctions on attorneys questioning U.S. District Court (now-2nd Circuit) Judge Denny Chin’s impartiality based on his Asian race and his appointment by a certain administration without further factual foundation); In re Evans, 801 F.2d 703, 703-705 (4th Cir. 1986) (affirming the disbarment of an attorney from practicing law in that court after the attorney sent a letter to a magistrate judge, accusing the judge of incompetence and “Jewish bias”).
Notwithstanding the impropriety of arguing bias based merely on race or ethnicity, federal law provides two avenues for seeking a biased judge’s recusal.
One statute requires the automatic recusal of a District Court judge upon the filing of a “timely and sufficient affidavit” describing the existence of the judge’s personal bias or prejudice and stating “the facts and the reasons for the belief … .” See 28 U.S.C. § 144, which “requires that the district judge accept the affidavit as true even though it may contain averments that are false and may be known to be so to the judge.” In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997).
Courts have responded “by insisting on a firm showing in the affidavit that the judge does have a personal bias or prejudice toward a party, and … on strict compliance with the procedural requirements of the section.” Id.
Thus, simply asserting that a judge has a certain ethnicity and that a party has made policy statements that may be adverse to immigrants of that ethnicity would not satisfy the requirements of section 144; such assertions are no more than speculative assumption unsupported by facts showing any bias.
Further inquiries into a judge’s bias or prejudice can be pursued under 28 U.S.C. §455, which, in pertinent part, requires a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and when he “has a personal bias or prejudice concerning a party… .”
Under section 455, there is “no threshold requirement of an affidavit or any other format for raising a recusal issue. In fact, the judge is expected to recuse sua sponte, where necessary, even if no party has requested it.” In re Martinez-Catala, 129 F.3d at 220.
A party may attempt to conduct discovery incident to a section 455 recusal motion, though such discovery is within the court’s discretion. Id.
“On the other hand, under section 455, a judge is not compelled automatically to accept as true the allegations made by the party seeking recusal.” Id.
A judge’s mere ethnicity, without any facts showing bias, does not provide a “reasonable” basis on which to question impartiality.
Notwithstanding the foregoing, in the Trump University case, certain reported facts do appear to raise questions about potential legal improprieties aimed at Trump — but not by Judge Curiel.
For example, a representative class plaintiff withdrew this past spring, citing alleged concerns about attacks by Trump and her public exposure, but Trump’s legal team noted her documented pre-suit positive comments about Trump University, both in written feedback and on video.
That information may raise questions about that plaintiff’s level of sincerity as a claimant, the adequacy of pre-suit due diligence, and whether any plaintiffs have been “encouraged” to feel aggrieved.
Further, that the plaintiffs’ law firm reportedly has paid the Clintons the notable amount of $675,000 for speeches since 2009 may raise questions about the attorneys’ goals for the suit in this election year.
For Trump to express concerns about those types of issues is rational, but not supportive of criticism of Judge Curiel.
Although our federal legal system suffers from many flaws, including overwhelming judicial caseloads, the diversity of the federal bench is one of our system’s great strengths.
No judge should be castigated for representing and being a part of that beneficial diversity, which perpetuates both our nation’s founding principle that we are all created equal and our constitutional guarantee of equal protection of the laws.
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Daniel P. Neelon is managing member of Boston International Law Group in Braintree. Caroline Schmittdiel is an associate at the firm.
