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 Trump’s 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 litigant’s 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 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. 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 Trump’s position.
Certainly, Curiel’s Mexican heritage alone would not be enough to raise a question of bias (for all we know, the judge supports Trump’s 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 Trump’s concerns about getting an impartial trial are reasonable. Curiel is, reportedly, a member of a group called La Raza Lawyers of San Diego. Trump’s 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 $675,000 in speaking fees since 2009 to Trump’s 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 Trump’s 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 he’s 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 Trump’s criticism of the judge reflects on his qualifications to be president. If the criticism is solely based on Curiel’s 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.