Alberto Gonzales has now weighed in on the question of Judge Gonzalo Curiel’s ability to provide Donald Trump with a fair trial. Invoking the Code of Conduct for Federal Judges, the former U.S. attorney general and justice of the Texas Supreme Court argues that there are two legitimate questions concerning Judge Curiel’s impartiality. First, there is Curiel’s membership in the La Raza Lawyers of San Diego; second, there is Curiel’s appointment of the Robins Geller law firm as lead counsel in the class action case against Trump University. Either of these, says Gonzales, might create an “appearance of impropriety.” (Note to judicial ethics people: Gonzales evidently meant “appearance of partiality,” which is the standard for recusal under both the Code and the federal statute; “appearance of impropriety is the standard for discipline, not disqualification.)
Regarding Gonzales’s first claim, we can turn again to Judge Leon Higginbotham’s opinion in Commonwealth of Pennsylvania v. Local Union 542, International Union of Operating Engineers. As many readers know, Judge Higginbotham was only the seventh African-American ever appointed to a federal court. In the Local 542 case, the defendant union in a civil rights case sought his disqualification in part because he had “addressed a luncheon meeting of the Association for the Study of Afro-American Life and History,” a group of black historians, at which he criticized several SCOTUS rulings on racial discrimination. (My post about the purely racial aspect of the disqualification motion is here.)
Here is what Judge Higginbotham had to say when denying the motion:
This organization was not a labor group, not an institute of management, not a political party, not the Black Panthers, not any entity which on or off the record has ever had a history antagonistic to those white Americans who believe in equal justice under the law. . . .
Is there anything more malevolent in speaking to a group of black historians about equal justice under the law than for a Catholic, Jewish, or Protestant judge to speak in his cathedral, synagogue or church on the Sermon on the Mount, or the Torah? If a Catholic judge spoke to a group of Catholic historians, should he be forever barred from adjudicating cases involving the constitutionality of state appropriations disbursed to parochial schools?
True, Judge Curiel is member of the La Raza Lawyers association, whereas Judge Higginbotham was only a speaker at the black historians meeting, but the logic holds equally in both situations. There is nothing about either organization that would create an appearance of partiality toward or against a particular litigant.
Gonzales’s second argument is even more far-fetched. He points out that the Robins Geller firm paid a large speaking fee to Hillary Clinton, and from this his posits that the firm – and by extension Judge Curiel – might favor her in the coming election. Put aside for the moment that the appointment of Robins Geller was in 2014, a year before Trump announced his presidential plans, and consider that virtually every federal judge most likely either favors or disfavors Trump in the coming election. By Gonzales’s reasoning, they would all therefore be subject to question. Gonzales himself was elected to the Texas Supreme Court as a Republican, but he did not disqualify himself in case that were argued by the state’s Republican attorney general, with whom he shared a party affiliation (nor should he have).
Other Republican leaders have had the good sense to distance themselves from Trump’s claims about Judge Curiel. It is too bad that Alberto Gonzales – former judge, former attorney general, and current law school dean – took the route of apologetics.
Sacking US Attorneys and lying about it is good. Torture is better. Defending Trump, priceless. Karl Rove approves.
I'm troubled by trump's attack on the judiciary and straight-up racism from a slightly different vector:
Europe has an inclusive society in law, but not in fact (see the ghettoization of immigrant communities). Reasonable people can differ on the causes of large un-integrated populations within Europe's states, but I don't know who would argue that such division is a good thing for the heath of those states.
The united states, on the other hand, has a dismal past of inclusivity by law, but in-fact, at least since the civil rights movement, there is a general cultural understanding that america is a place where your heritage ought not prevent you from integrating into american civic life. To the extent that general cultural understanding becomes untrue, I'm concerned that there is less and less about this country worth defending (Yosemite? . . . Krispy Kreme?).
from the wire:
McNulty: I gotta ask ya: If every time Snotboogie would grab the money and run away, why'd you even let him in the game?
Man On Stoop: What?
McNulty: If Snotboogie always stole the money, why'd you let him play?
Man On Stoop: Got to. This America, man.
Terry,
Europe is a dismal failure on a historical basis of multicultarism. See examples of genocide and death for a thousand years against various minority groups. Anyway, the USA never engaged in ethnic cleansing which is the national sport of europe. I'll take Trump and his way with words to the various groups he targets with the perspective that Americans may insult others but they dont have a history of killing either.
Europe has no right to preach about inclusive type and the European continent is soaked with the blood of civilians. Guilty as charged.
As to the last comment, yes making money is the American National sport. Guilty as charged.
Trump4Prez, as for ethnic cleansing in the United States let me mention a population that preceded Europeans on this continent. As for something in between ethnic cleansing and insulting let me mention slavery. "Nuff Said.
"I'll take Trump and his way with words to the various groups he targets with the perspective that Americans may insult others but they dont have a history of killing either."
Three things:
1. what Jeff Said.
2. the potential president and head of the executive branch criticizing the impartiality of a judge, and by extension the judiciary over a personal civil matter based on his ethnicity. Just let that soak in a few minutes. Have you read the constitution and the federalist papers? This is the demagogue the founders had in mind when they created checks and balances.
3. Don't have a history of killing each other *yet*.
Jeff, slavery was not mass murder. It was an accepted way of doing business althoufh from our perspective abhorent. But it was not anything even close to shooting unarmed civilians or genocide.
As to natives, it is my understanding that Australia's treatment of theirs was genocidal while ours was very bad it did not rise to anything close to ethnic cleansing.
Terry, I hear what you are saying but I do not really agree. Is he a demeagogue…maybe a bit…but we desperately need someone who can whip the nation into place. As a 2 time Obama voter I confess I am voting for Trump.
I cannot *believe* I even have to do this and have no illusions that it will pierce the depths of "trump4prez's" ignorance, but just for the record since the Internet is forever:
https://www.washingtonpost.com/news/post-nation/wp/2015/02/10/even-more-black-people-were-lynched-in-the-u-s-than-previously-thought-study-finds/
http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtid=2&psid=446
(And that's just off the top of my head).
I posted a comment that likely got caught by the spam filter due to linkage… I'd appreciate it being posted.
"desperately need someone who can whip the nation into place"
Your lust for an Authoritarian figure is transparent.
Sigh. This is how the republic ends? A reality TV star with a 5th grade vocabulary. At least Rome was turned to empire by Caesar. What a shame.
My friends, we have passed the rubicon. Corrupt (pervasively) government, national bankruptcy, an overstretched volunteer military that is exhausted, barbarians at the gate (isis in europe, refugees in europe, illegal immigrants at home), a failing infrastructure, educational system that is way too PC, yes, we need a dictator.
By any definition of ethnic cleansing,Native Americans were forced to relocate from their homelands to other locations. That, Trump4Prez is the very definition of ethnic cleansing. That such people were singled out for murdeous treatment (look at the death rates during these forceable relocations) that begins to look and sound like genocide. You may choose not to define it as anything beyond abhorrent but in my classes on ethnic cleansing and genocide this period fits the bill. As for slavery it is you who raised the question of mass murder, my comment was that it resided somewhere between murder and insulting behavior. But now that you have opened that box let me point out that there was a significant death rate during the middle passage. I was referring to the institution of slavery in the South which after the end of the slave trade had to reproduce their slaves as the supply dried up but during the slave trade the death rate was more than abhorrent and since the slaves were viewed as property not humans the issue of murder did not play into it — then. It does now.
The ones who are havng so much fun bashing Trump don't realize how much they sound like the ones bashing the Democrats (on different grounds, but for the same reasons).
We live in a polarized society. Lubet is just a tool of forces he apparently doesn't understand. He just mindlessly follows the news, and jumps on whatever anti Trump, anti republican talking point of the day he can find (usually seasoning his partisan attacks with a little law to make his rank partisanship seem less unseemly).
This is just MSNBC on the Faculty Lounge website. Why not just declare this site a political advocacy website and be honest about it?
I don't support Trump. I'm interested in the forces at work in this society that have led us to this juncture.
Is there no one in academia with an inch of depth when thinking about these issues, or is everyone just a partisan hack with no critical skills whatsoever? (Lubet never seems to apply his supposedly acute analytical skills to Democrats and I have never read in these pages anything he has written that even approaches a macro analysis of the American political system and its deficiencies.)