Donald Trump has made his perspective plain.
A judge, born in Indiana to Mexican immigrant parents, had no business ruling on a matter involving The Washington Post's request to make public certain documents in a civil suit related to activities at Trump University. When the judge ruled that the documents should be made public this week, Trump said in more ways than one that the judge, a Mexican-American and natural born U.S. citizen, could not possibly have ruled on the matter without bringing personal bias to the case.
Trump, as he sees it, is the presidential candidate who wants to build a wall along the U.S.-Mexico border. And, that fact along with certain comments made about Mexican nationals during Trump's presidential announcement speech have, according to Trump, clearly rendered the judge unable to render a fair decision on the documents based on the law. The implication is that the judge, Gonzalo Curiel, has an interest in hindering Trump's presidential campaign and perhaps thought that information contained in the documents might accomplish that.
But when The Fix checked with legal experts on the usual standards court administrators and judges themselves use to decide when a case should be reassigned, a judge should voluntarily remove him or herself and when a case needs to be reheard, Trump's claims do not even begin to meet them.
In fact, Trump's comments may reveal more about Trump than they do the way the judicial system functions. Trump, the American-born son of a Scottish immigrant, does not believe the American-born son of Mexican immigrants is capable of ruling on his case in a way that is consistent with the law.
Here's what Trump told The Wall Street Journal Thursday:
In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association.....The New York businessman also alleged the judge was a former colleague and friend of one of the Trump University plaintiffs’ lawyers. The judge and the lawyer once worked together as federal prosecutors, but the lawyer, Jason Forge, in an interview said he had never seen the judge socially.
Curiel and Forge were federal prosecutors in the same office over a decade ago, Forge told the Wall Street Journal.
As for Trump's ethical allegations:
The question here really is a two part one, said Russell Carparelli, a retired state court judge who spent 11 years on the Colorado Court of Appeals. Carparelli has also provided courtroom management, ethics and professional standards training to judges and lawyers. What's the judge's role? Ruling in a specific case or on a specific request.
"His obligation is to rule on the basis of the law," Carparelli said, "and if one of the parties feels he isn't heard or the judge didn't do that he can seek higher redress with another court. That's the question of bias. And, does the judge have any personal connection to the case, the parties or the matter that might effect their partiality. That's conflict of interest. And I have to tell you, the mere fact that the judge is who he is and has ruled against Trump or Trump is running for office does not indicate bias or a conflict of interest."
Judges are not disqualified from hearing cases because they are members of a specific racial or ethnic group. Neither of the legal experts The Fix contacted had ever heard of such a thing happening.
To do so would be to suggest that some people are less capable of making a ruling on the basis of the law or behaving ethically than others, Carparelli said. All judges take the same oath, most are lawyers and are officers of the court interested in trying to uphold the rule of law. They understand that actual fairness and the appearance of fairness plays a role in that. Every judge is not perfect, nor is every decision. But Trump's notions don't have legal merit, Carparelli said. And, as Carparelli pointed out, there are over 30,000 judges in the United States who hear hundreds of thousands of cases daily. Trump is suggesting widespread distrust in the legal system with little to no basis for his claims.
"We can't disqualify all judges who are members of that group on the basis that a party to the case has said something offensive about that group, at some time."
The only exception that Carparelli can think of: a judge who has made comments outside the courtroom about a person with a matter in their courtroom. In this case, if Curiel had lambasted or praised Trump's campaign tactics in the press or responded to Trump's comments this week, then there might be a problem.
In 2009, the U.S. Supreme Court ruled in a 5-4 decision that a judge should not have heard a case involving a party to a case who had given a $1 million campaign contribution to the judge. One justice, the late Antonin Scalia, who Trump has praised, vehemently disagreed. In his own dissenting opinion, Chief Justice John Roberts described the decision as one likely to create havoc in states where judges are elected to the bench.
There are both practical and legal reasons that Trump's ideas aren't workable, said Chad Schmucker, President of the National Judicial College. The college is the premier judicial education organization in the country and over the course of the last 50 years has trained over 100,000 state court and federal administrative court judges as well as about 100 judges each year from foreign countries.
There are no major differences from state to state or even between state and federal courts in the rules that determine when a judge should step aside or be replaced, Schmucker said. Schmucker also served as a state court trial judge in Michigan for 20 years before serving as the administrator of the Michigan state court system where he sometimes considered ethical matters involving judges.
There are some bright lines. A judge should not, for instance, hear a case where they own stock in a company party to the case or a judge should at least offer to step aside if a relative owns property in an area of the city where a zoning matter has been brought to court, a case directly involving a relative. Most judges follow them.
But, lots of ethical matters are gray. Did a judge and lawyer in the case once practice law for the same firm or work in the same office? Usually the answer depends on how much time has passed. Did a judge once represent or prosecute a party to a case in his court while working as an lawyer? Again, both time and case content matter. But many judges would step aside in this situation.
However, judges who are former prosecutors are not barred from hearing all criminal matters. And judges who were once lawyers working in medical malpractice are not barred from hearing any and all medical malpractice cases. Similarly, every African American judge can't be disqualified from hearing civil rights cases or Jewish judges barred from hearing cases involving one Jewish and one gentile party. But, if that judge is also the president of the local NAACP chapter and that chapter has taken a public stance on the case, or the judge and lawyer attend the same synagogue and socialize together, then the judge may need to step aside.
It's not group membership but something more specific that may contribute to or create the appearance of bias or a conflict of interest. That's the difference.
When Schmucker was on the bench he had a number of smell tests. Among them, had any of the parties in the case ever been to his home or he to theirs? If so, he would step away from the case or at least offer to do so after disclosing the facts. But the answer will not be the same in every situation. For instance, in a small town which cases might a court be able to hear? The judge's children likely attend school with the children of people party to some cases. The judge and one or more of the lawyers may attend the same church.
"If we functioned the way he's suggesting, the entire system would grind to a halt," Schmucker said. "Trump is almost asking for a hypothetical judge that doesn't exist, someone who just dropped out of the sky and doesn't have any background of any kind."
In addition to that, Trump and his very highly-regarded law firm, have been aware of Curiel's involvement for some time, Schmucker pointed out. If there were legitimate legal grounds the judge likely would have been removed from the case long ago.