If judges arent seen as impartial the public will lose faith in the rule of law.
By Alberto R. Gonzales
Texas Insider Report: WASHINGTON D.C. Donald Trump suggested this week that U.S. District Court
Judge Gonzalo Curiel cant give him a fair hearing. The test is whether there is an appearance of impropriety" under the facts as they reasonably appear to a litigant in Trumps position.
Certainly Curiels Mexican heritage alone would not be enough to raise a question of bias (for all we know the judge supports
Trumps pledge to better secure our borders and enforce the rule of law).
Curiel who is presiding over a class-action suit against Trump over his former for-profit educational company Trump University is a U.S. citizen born in Indiana to Mexican immigrants.
Im building a wall" on the U.S.-Mexico border if elected the presumptive Republican nominee for president told the Wall Street Journal on Thursday. Its an inherent conflict of interest."
Earlier in the week he told a crowd at a rally in San Diego that Curiel was a hater of Donald Trump a hater."
As a private citizen Trump has a right to his opinions regardless of whether others agree with them or whether others consider them wise foolish or even dangerous. Trump of course is more than a private citizen; as the likely nominee for president of a major
political party he speaks with a voice that carries much weight and if successful in November will influence millions of people.
Because of this some commentators have condemned Trumps suggestion that Curiel step down from the case. These voices have quite rightly emphasized the importance of upholding our independent judiciary from baseless attacks by high-level persons from other branches of government.
An independent judiciary is extremely important. But that value is not the only one in play here. Equally important if not more important from my perspective as a former judge and U.S. attorney general is a litigants right to a fair trial. The protection of that right is a primary reason why our Constitution provides for an independent judiciary.
If judges and the trials over which they preside are not perceived as being impartial the public will quickly lose confidence in the rule of law upon which our nation is based. For this reason ethics codes for judges
including the federal code of conduct governing Curiel require not only that judges actually be impartial but that they avoid even the appearance of impropriety."
That appearance typically is measured from the standpoint of a reasonable litigant.
It is crucial to understand the real issue in this matter.
- I am not judging whether Curiel is actually biased against Trump. Only he knows the answer to that question.
- I am not saying that I would be concerned about him presiding over a case in which I was a litigant.
- And if I were a litigant who was concerned about the judges 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.
But none of these issues is the test. The test is whether there is an appearance of impropriety" under the facts as they reasonably appear to a litigant in Trumps position.
Certainly Curiels Mexican heritage alone would not be enough to raise a question of bias (for all we know the judge supports Trumps pledge to better secure our borders and enforce the rule of law). As someone whose own ancestors came to the United States from Mexico I know ethnicity alone cannot pose a conflict of interest.
But there may be other factors to consider in determining whether Trumps concerns about getting an impartial trial are reasonable.
Curiel is reportedly a member of a group called La Raza Lawyers of San Diego. Trumps aides meanwhile have indicated that they believe Curiel is a member of
the National Council of La Raza a vocal advocacy organization that has vigorously condemned Trump and his views on immigration. The two groups are unaffiliated and Curiel is not a member of NCLR. But Trump may be concerned that the lawyers association or its members represent or support the other advocacy organization.
Coupled with that question is the fact that in 2014 when he certified the class-action lawsuit against Trump Curiel appointed the Robbins Geller law firm to represent plaintiffs. Robbins Geller has
paid $675000 in speaking fees since 2009 to Trumps likely
opponent Hillary Clinton and to her husband former president Bill Clinton. Curiel appointed the firm in the case before Trump entered the presidential race but again it might not be unreasonable for a defendant in Trumps position to wonder who Curiel favors in the presidential election.
These circumstances while not necessarily conclusive at least raise a legitimate question to be considered. Regardless of the way Trump has gone about raising his concerns over whether hes getting a fair trial none of us should dismiss those concerns out of hand without carefully examining how a defendant in his position might perceive them and we certainly should not dismiss them for partisan political reasons.
Finally some have said that Trumps criticism of the judge reflects on his qualifications to be president. If the criticism is solely based on Curiels race that is something voters will take into account in deciding whether he is fit to be president.
If however Trump is acting from a sincere motivation to protect his constitutional right to a fair trial his willingness to exercise his rights as an American citizen and raising the issue even in the face of severe criticism is surely also something for voters to consider.
Alberto R. Gonzales served as White House counsel and U.S. Attorney General during the George W. Bush Administration. He is the Dean & Doyle Rogers Distinguished Professor of law at Belmont University College of Law in Nashville TN.
