Lawsplainer: When Must Federal Judges Recuse Themselves, Anyway?

I have a question about Donald Trump.

Hell. I am in Hell. This is Hell.

Calm down. I just want to ask about his argument about that federal judge hearing the Trump University case.

Judge Gonzalo Curiel, the United States District Judge hearing two related cases against Trump and Trump University, which I wrote about last week?

Yes.

You couldn't retain his name for six whole days?

You're going to make this difficult, aren't you?

You have no idea.

I just want to know whether Trump has any law on his side. When do federal judges have to recuse themselves?

Fine.

There are two federal laws governing recusal. One is about procedure, the other is about substance.

Title 18, United States Code, section 455 governs substance. It starts with a catch-all:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Then it offers specifics:

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

So all federal judges are dudes?

Don't start with me.

That "might reasonably be questioned" is awfully broad. Doesn't that mean Trump is right?

Only if you pretend the last century of law didn't happen. Federal courts have ruled many, many times about what is a "reasonable" question and what isn't. "Reasonableness" is defined in the context of some fundamental assumptions about the legal system — especially that judges generally won't act like sectarians based on their race and religion. Moreover, courts recognize that all judges had lives before becoming judges, and those lives necessarily involved a wide range of affiliations. Plus, the test is based on the perception of a reasonable person, a "well-informed, thoughtful, and objective observer, rather than the hypersensitive, cynical, and suspicious person." So. Not a Trumpalo, not a Clintonista.

So Trump's argument that a "Mexican" can't hear is case is bogus?

Beyond the shadow of a doubt based on a century of law. Many courts have considered and rejected the argument that a judge of a particular ethnicity, gender, or religion is inherently biased because of the nature of the case. In fact, the argument has been so repeatedly and thoroughly rejected that it's sanctionable to make it.

What other kinds of arguments have federal courts rejected?

You want me to do a lot of research, don't you? I'm going to cheat and summarize straight from the Rutter Guide: federal courts have rejected arguments that judges' impartiality could reasonably be questioned based on their pre-judicial law practice focus, their special expertise, their memberships in groups prior to appointment, their political views discussed prior to appointment, their giving lectures or writing on the topics involved in the case, their expression of opinions about propositions of law, their political donations before appointment, which President appointed them, where they went to school, and their chosen political party.

Wow. It sounds hard to force recusal. When have courts required it?

Again I cheated by looking at Rutter! Courts have ruled that judges should have recused themselves when they had pending employment offers from a party's law firm, when they had a close personal relationship with counsel for a case, when they had a close personal relationship with a party or witness, when the court's staff was employed by or very close to a party, when a close family member is a lawyer at a party's law firm, when the judge was a trustee of an entity that is a party, when the judge previously worked on the case as an attorney, when they had recently been a losing defendant in a lawsuit by a party, or when the judge has personal knowledge of disputed facts in the case as a witness.

In addition, sometimes a judge's comments about a case can require recusal when they show bias.

Really? But Trump says that Judge Curiel's rulings show bias. Doesn't that require recusal?

No. Bias has to be extrajudicial. That means that you can't recuse a judge just because the judge has concluded and expressed that your case is weak or that your lawyer is acting like a jackass in court. You absolutely can't recuse a judge because they ruled against you. Recusal is only required when a judge displays bias arising from knowledge or grounds from an inappropriate source, not from sitting on your case. To require recusal based on the judge's comments about his or her observations of the proceedings, the comments have to be truly extreme — "such a high degree of favoritism or antagonism to make a fair judgment impossible."

So: a wartime judge who says that "[o]ne must have a very judicial mind, indeed, not to be prejudiced against German Americans because their hearts are reeking with disloyalty.” That's extrajudicial bias requiring recusal. Saying that the evidence shows that the defendant behaved badly, or that the plaintiff's arguments lack merit? That's not.

But can't judge Curiel's impartiality be reasonably questioned now that Trump has repeatedly attacked him?

No. It's extremely well established — as well-established as anything in federal law — that you can't judge-shop by being a douche. A party's insults, criticisms, and even threats are not a valid basis for recusal. Otherwise you could judge-shop by attacking judges until you found one you liked.

What about Judge Curiel's membership in a Latino organization?

Leaving aside for the moment whether the attack is deliberately dishonest because it conflates a bar association with a political advocacy group, membership before becoming a judge isn't grounds for recusal. Moreover, membership in a religious organization is not grounds for recusal. Membership in bar associations and legal associations like the one at issue here has repeatedly been found not to require recusal. That's not just for ethnic organizations. So, for instance, membership in the Guild of Catholic Lawyers was not a basis for recusal in a suit against the New York Archdiocese. Hoatson v. New York Archdiocese, 280 Fed.Appx. 88 (2nd Cir. 2008).

I will note that calling an organization "the race," even if you don't mean it that way and the phrase has been used to mean other things and it's history is totally different and it's not the same thing at all so shut up, is kind of asking for trouble.

Even if one argues that Judge Curiel's membership in a Latino attorney organization might show bias, Trump's lawyers would have a problem: they'd be arguing that the alleged bias didn't arise until long after Judge Curiel started hearing the case. Trump's argument, to the extent it can be nailed down, is that Trump wants to build a wall and Judge Curiel is a member of a Latino organization and therefore Judge Curiel is biased. But Trump didn't start talking about building a wall until Judge Curiel had already been hearing the case for years. In general, a party can't manufacture bias through new conduct after the judge has been assigned. That stops parties from judge-shopping. So, for instance, if I don't like how my case is going before a Turkish-American federal judge who is a member of a Turkish-American group, I can't force a judge-switch by becoming a loud advocate for official recognition of the Armenian Genocide.

So Judge Curiel was right to refuse to recuse himself?

Judge Curiel hasn't refused because Trump's lawyers haven't made a motion for recusal, because they know it's without merit. Recusal motions are governed by Title 28, United States Code, section 144. If you make such a motion, the targeted judge looks at it to make sure it is timely and generally legally sufficient — that is, not facially ridiculous. If it clears that low hurdle, it goes to a different judge for determination, and the case is stayed in the meantime. Trump's made no such motion.

Do you think his attorneys will make such a motion?

No.

So what's Trump doing?

Posturing and playing to crowds who don't like judges, or "Mexicans," or especially "Mexican" judges. Puerile "Alpha" bullshit.

Can't Judge Curiel just say "fuck this noise, I'm out" and recuse?

No. Federal judges have an affirmative obligation not to recuse themselves except for legally sufficient grounds. That stops the reverse of judge-shopping: ditching unpleasant, boring, or otherwise undesirable cases.

Maybe Trump and his supporters don't agree with this legal precedent?

Maybe they don't. But as far as I know Trump never got upset about federal recusal law until he ran for President. And I haven't heard him, or his supporters, argue that he's being oppressed by a century of wrongly-decided law; I've heard them make uninformed or deliberately false statements about what the law requires.

Last 5 posts by Ken White

Comments

  1. Vince Clortho says

    Gotta ask. Do you have a bookshelf with the Rutter guides, or do you access them online?

    I ask on behalf of my older partners, who still look up cases through a digest.

  2. Libertymiks says

    One should not forget that judges, as a class, are far more arrogant than the average person. They also tend to be blinded by their hubris.

    One should also not forget that the relevant jurisprudence governing recusal is, of course, penned by other judges who have a vested interest in making it (1) difficult to recuse their brethren and (2) punishing those who challenge a judge's bona-fides.

    Judges need a lot more humility. Take the second circuit case to which you cited. There, Judge Chin allowed his arrogance and his hurt feelings to cloud his judgment. If you are an Asian and you have been, or continue to be, a member of an Asian legal organization, you should, at the very least, not be offended by a litigant who calls your impartiality into question – particularly a litigant who has been involved in other litigation probing the unholy alliance between other Asians and the president who appointed you to the bench.

    Instead, Judge Chin allowed his personal feelings to get in the way and he did not hesitate to punish the lawyers who insulted him. Put another way, the judge used the power of the state to sanction those who hurt his feelings.

    A judge should not be presumed to be impartial. If a judge's impartiality is called into question, the judge should have no role in deciding the question. In fact, the better, more humble approach should be for a judge to recuse himself from a case where his impartiality has been questioned.

  3. eric76 says

    What I find truly bizarre is Alberto Gonzales's defense of Trump's paranoia. As a former US Attorney General, you would think he would have a better understanding of judicial recusal.

  4. says

    @Libertymiks:

    In fact, the better, more humble approach should be for a judge to recuse himself from a case where his impartiality has been questioned.

    So, if I don't like a judge's rulings in a case, all I need to do is question the judge's impartiality, and then I should get a new judge?

  5. Libertymike says

    @Ken White

    Did I write that?

    Note the contradiction between the cases you cited and your question. Courts have routinely held that a judge's impartiality should be presumed; yet, you, in your question, implicitly assume (though you wrapped your assumption under the first person) that if judges adopted a more humble approach to recusal, the floodgates would be open with folks raising impartiality after every lost motion.

  6. eric76 says

    A judge should not be presumed to be impartial. If a judge's impartiality is called into question, the judge should have no role in deciding the question.

    See Section 144

    In fact, the better, more humble approach should be for a judge to recuse himself from a case where his impartiality has been questioned.

    That would be a true disaster.

    If the defendant knows the plaintiff is short of money and may not be able to continue the lawsuit, wait until it is near time for a trial and then accuse the judge of being biased. He would get a new judge. The judge would have to make room for the case on his docket and would have to get up to speed on the issues. It would push back the trial date, possibly by a lengthy period of time. Keep doing it over and over and you could postpone a trial indefinitely.

    Same for if a witness is getting old and may not be around much longer. Just keep getting new judges until the witness passes away.

    A rule like that would destroy the judicial system.

  7. Libertymike says

    @eric76-

    You are presuming that the behavior of which you write would become commonplace. The evidence for your presumption is…..?

    At bottom, your presumption is predicated upon rank speculation.

  8. eric76 says

    Do you really think that the ability to drop judges who you don't like would not quickly become widely abused?

    Did you look up Section 144 as I suggested? It provides a way to have the question of bias resolved by a different judge.

  9. Billy says

    Yes Ken; a judge should not be allowed to make life altering decisions about other peoples' lives if those people have any question about impartiality or conflict of interest. Why is a judge entitled to make such weighty decisions regarding other peoples' lives if those people do not consent? Why shouldn't judges be treated like arbitrators? You shouldn't be able to force your favorite judge on someone because you have clout in the legal system but that's what Arizona does with the auxiliary judge system. Retired judges get appointed, not elected, so they have no accountability… They get paid exorbitant sums and they're appointed for 10 year terms. They frequently are used to hear controversial cases that might harm the reelection or career of other judges.

  10. MrBill says

    @Libertymike – If the strategy was attempted, and succeeded, you can bet that it would tried again, and again, for so long as it continued to succeed. No crystal ball needed to figure that one out. Lawyers want to win, and if they find a strategy that works, they're going to use it.

  11. AH says

    @libertymike: We already have litigants who jurisdiction shop. I mean, I'm sure it's completely coincidental that Samsung paid to put an ice rink in front of the courthouse that receives more patent suits than any other, in Marshall Texas.

    If they already chose location based on likelihood of success, what makes you think they wouldn't choose a judges based on the same criteria (if given the opportunity). Let's address the question more broadly though: There are a number of lawyers who read this site, how many of you would NOT take the opportunity to get a more friendly judge for you client, if you could?

    Kinda seems a bit like a no-brainer to me.

  12. Anon Y. Mous says

    What everyone seems to be overlooking is that the judge is in fact a Mexican. Not just someone of Mexican ancestry, but a citizen of Mexico. He was born in the USA to parents who had immigrated from Mexico, but were still Mexican citizens. Under current law, since the judge was born on US soil, he was an American citizen at birth. But, he was still born to Mexican citizens, which means he was also a Mexican citizen at birth. He holds dual citizenship.

    To sum up, it is factually correct to refer to the judge as a Mexican. And I can see why Trump would be concerned about a citizen of Mexico being the judge in his case, given the animus of the government of Mexico towards Trump.

  13. says

    Libertymike:

    You seem to think I'm suggesting that Trump can't exercise his free speech rights by arguing the judge is biased. Nope. Nor am I suggesting that people can't argue for changes to existing law (though I haven't understood Trump to be doing this).

    My grievance, as usual, is people promoting ignorance by making false statements about the status of the law. Trumpalos saying that "Curiel is biased and must recuse himself" is like people saying "hate speech is not free speech" — it's a politically motivated misstatement of the law.

    Now, as to your argument about what the law should be — consider this. What if Curiel were George Curry, former Tea Party participant and member of Lawyers For Immigration Reform? Should the plaintiffs, in your mind, have a right to a new judge?

  14. DaveL says

    To take the issue of judge-shopping and recusal-on-demand to its logical extreme, of course there are generally two sides to any lawsuit, and should one party obtain a more favorable judge by questioning the original judge's impartiality, could not the other party nullify that advantage by questioning the impartiality of the new judge in turn? It isn't hard to imagine a defendant effectively freezing a lawsuit in place by objecting to every judge in the jurisdiction.

  15. Mikee says

    RE: Anon Y. Mous

    No, he was born in Indiana, which has never been a part of Mexico.

  16. Mike says

    @Libertymike

    Instead, Judge Chin allowed his personal feelings to get in the way and he did not hesitate to punish the lawyers who insulted him. Put another way, the judge used the power of the state to sanction those who hurt his feelings.

    [citation needed]

  17. Typeschild Delete says

    This is timely, thanks. I was just discussing with a friend the Stanford rape case and the fact that the judge was not only an alum, but had been captain of the LaCrosse team (the rapist was likewise a student athlete).

    We were discussing whether there was bias (both of us agreed yes), and whether there should have been a recusal(where we disagreed).

  18. Brian Z says

    @Anon Y. Mous

    … given the animus of the government of Mexico towards Trump.

    Since when?

  19. Anon Y. Mous says

    RE: Anon Y. Mous

    No, he was born in Indiana, which has never been a part of Mexico.

    I said he was born in the USA. Read much?

  20. Josh C says

    Huh. Some of those examples make it seem like it should be very hard for former attorneys general to sit as criminal judges (same practice/former colleagues, etc). Do they get some special exemption, or is it handwaved, or am I missing something?

  21. Anon Y. Mous says

    @Brian Z

    Doesn't matter. The argument that a litigant is not allowed to use his own statements regarding the judge or directed at the judge are not on point to the argument that the judge is biased because of a dispute between a litigant and a foreign country.

  22. Libertymike says

    @Ken White-

    No, I do not think that you are suggesting that Donald Trump should not be able to exercise his free speech rights by arguing that the judge is biased. Yes, I agree with you that Trump has not been advocating for a change in the law regarding the standards for recusal.

    I have no beef with your grievance about folks making false statements about the status of the law. In fact, we are in agreement on that point. It serves no useful purpose to make false statements about the status of the law.

    Agreed that the First Amendment admits of no exceptions for "hate speech" or, for that matter, "fighting words" or "state secrets" or "national security".

    As for your question. Fairly read, you are employing the false attribution logical fallacy to my initial post. I did not argue that judge Chin should have been removed just because of the arguments advanced by counsel in that case, nor do I argue that judge Curiel should be removed just because of what Trump has expressed and the fact that the judge is a member of La Raza. Stated alternatively, neither Trump, nor the litigants in the second circuit case should automatically get a new judge upon the sole basis that they have questioned the impartiality of the judge.

    What I am arguing is that the current state of the law impermissibly presumes the impartiality of the judge. It should not. Judges are fallible human beings. Perhaps more so than the average person given that such a high percentage of them come from the public sector and many of them from an entire adult life spent in the public sector. In my opinion, that is hardly the best background for a judge.

    I am also troubled by the current state of the law regarding the issuance of sanctions against litigants and counsel who move to recuse a judge because of the judge's ethnic or racial status. If a judge belongs to a race based organization, the judge obviously is, to some extent, tainted by group think – not a trait that makes for good judgment. If the judge is presiding over a case in which one of the litigants or their counsel have excoriated such group think, that is, in my opinion, sufficiently meritorious to at least prevent the party or his lawyer from being penalized for challenging the judge's impartiality.

    Now, back to your question: You will have to give me more facts. There is no inherent ethnic or racial element at issue with being a tea-party or Lawyers for Immigration Reform member. It should not be overlooked that Trump has not been a tea-party member. For that matter, has Lawyers for Immigration Reform called for the building of a Wall?

    Nevertheless, if, at the outset of the case, class counsel learn that the judge handling their case against Trump university is a former member of the tea-party and Lawyers for Immigration Control, they should, if they genuinely think that he or she will be biased against them because of the affinity of immigration views with Trump, be able to move to recuse the judge.

  23. Brian Z says

    @Anon Y. Mous

    There's a lot of what you said that I don't accept as fact, but I'm trying to stay focused solely on the timing, as I believe that's the only relevant factor here.

    If the judge were a member of a group that had an ongoing dispute with Trump which started prior to the start of the trial, there might be some reason to believe he should recuse himself.

    But that's not what happened here. The trial predates the alleged "animus," right? I feel Ken covered this in the Turkey/Armenian genocide example. Do you disagree with the reasoning behind that example as well?

  24. Libertymike says

    Mike-

    Judge Chin: "I am not going to search my soul. I do not need to do any soul searching at all. The letter is offensive. I find the letter to be offensive. I do not think it is benign nor do I think it is respectful. Not at all."

  25. Anon Y. Mous says

    @Brian Z

    Ken's Turkish example doesn't go far enough. He uses a "Turkish-American" as a judge. But, that could merely be an American of Turkish descent rather than a judge who actually is a citizen of Turkey. Further, in Ken's example, we don't have the leader of the government of Turkey singling out the litigant by name and with profanities.

    If Ken were to modify his argument to include those elements, it would be very much weaker and I would disagree with him.

    Also, while forum shopping is a concern, like much else in the law, it does not trump all. Unless you want to argue that Trump's run for the presidency was an elaborate form of forum shopping, I think it would be a difficult argument to make that Trump doesn't get to claim bias because of the Left's reaction to his policy positions.

  26. Kemn says

    @libertymike

    All Donald Trump (or rather his lawyers) have to do is file a formal request for Judge Curiel to recuse himself. They haven't done so.

    That suggests that all this is more posturing by someone intent on getting as much press time for himself as possible.

    Also, Curiel has ruled against Trump before he started his Presidential campaign by calling Mexican Immigrants racist : link

    So…How is he biased against him?

  27. Anon Y. Mous says

    @Brian Z

    I would say no. He would be considered by Mexico to be a natural born citizen. Your reading material gives conditions where his citizenship could theoretically be stripped from him, but it is hypothetical. Unless he pisses of the Mexican government, I would bet that won't happen. Which adds to the argument that he at least has the appearance of a bias. He won't want to piss off Mexico by siding with Trump since Mexico could take away his Mexican citizenship if they wanted to.

    Even though Mexican nationals by birth may never lose their nationality, Mexican citizenship, and thus its prerogatives, may be lost if a person does the following:

  28. Guy who looks things up says

    @Libertymike

    the current state of the law impermissibly presumes the impartiality of the judge.

    Not so. Federal statutes, quoted by Ken in this very thread, define the circumstances wherein a judge can be presumed to be partial. If you think those circumstances should be more broad, talk to your legislative representative.

    If a judge belongs to a race based organization, the judge obviously is, to some extent, tainted by group think

    Sure, why not? They all look alike, right? Look alike, think alike, same thing.

    There is no inherent ethnic or racial element at issue with being a tea-party or Lawyers for Immigration Reform member.

    Obviously, because there are so many Asian, African-American and Hispanic members of both organizations. Membership wouldn't indicate of pro-white bias at all, would it?

  29. Brian Z says

    I'm done. I think you're pushing a fringe conspiracy view fueled by naked partisan bias that this judge is somehow beholden to a foreign power simply because his parents were immigrants. I find that view ungenerous and unAmerican. I have found no evidence to suggest that the government of Mexico actively claims him as a citizen, or that he considers himself a Mexican citizen, or that he has asserted any privileges or rights as a Mexican citizen. He is American.

    The idea that a foreign leader's statements regarding a public personality would automatically and irreparably bias a US official who happens to share a common ethnic identity is equally repugnant.

    The trial has been going on for years. Trump's legal team has made no attempt to transition these theories of blood bias into actual legal arguments, which leads me to believe that this is simply the same thinly-veiled xenophobic garbage that has partially contributed to Trump's political success thus far.

    We're unlikely to convince each other of the other's positions. I sincerely do not believe that Judge Curiel is acting the way he is to avoid "pissing off Mexico."

  30. Anon Y. Mous says

    I have found no evidence to suggest that the government of Mexico actively claims him as a citizen, or that he considers himself a Mexican citizen, or that he has asserted any privileges or rights as a Mexican citizen. He is American.

    Actively claims him as a citizen? That's not the way citizenship works. Perhaps you can point me in the right direction. Where does one look to find the list of people that the government of Mexico claims as citizens?

    He is a citizen of Mexico and has been since his birth. And, he is also a citizen of the US since birth. He holds dual citizenship. And, I stated all of that in my initial comment.

  31. L says

    You are presuming that the behavior of which you write would become commonplace. The evidence for your presumption is…..?

    At bottom, your presumption is predicated upon rank speculation.

    If you create an incentive for a behavior, you can expect to see more of that behavior.

  32. Castaigne says

    @Libertymiks:

    A judge should not be presumed to be impartial. If a judge's impartiality is called into question, the judge should have no role in deciding the question. In fact, the better, more humble approach should be for a judge to recuse himself from a case where his impartiality has been questioned.

    Then I question the impartiality of every judge who sides against my case, until I have one that agrees with me. I guess you have no problem with that tactic, right?

    You are presuming that the behavior of which you write would become commonplace. The evidence for your presumption is…..?

    Mankind is inherently selfish and will use such tactics. See the history of the human race, the doctrine and teaching of most major religions, and the venal attitude of us Americans.

  33. K Vincent says

    So, Mr. White, you quote the very paragraph citing if a judge's impartiality is questioned he should recuse himself…….and in the same breath you criticize the law as a "disaster.," if followed. Nite Judge Curiel "mistakenly" dumped excess/wrong documents, (which could easily be construed as a childish payback of Trumps criticism), but nothing to see here…. move along. The judge should recuse himself, now. It seems to me your article had a bias.

  34. eric76 says

    Are you talking about the exhibits that were resealed at the judge's order?

    Trump's lawyers agreed to the release of those exhibits. The reason they were resealed was because they contained some personal information that should have been redacted prior to their release. In the order resealing the exhibits, Judge Curiel ordered them to be appropriate redacted quickly. I assume that is so they can be unsealed in their redacted format.

    And keep in mind that of the exhibits that were unsealed, some were from the plaintiff's side and some from the defendant's side. Also, some that were resealed were from the plaintiff's side and some from the defendant's side.

  35. Matthew Cline says

    @Ken:

    Could you add a section about the law firm representing the class action party being pro-Clinton? This is a complaint I've seen in multiple place, but as noted by someone in the previous thread, judges don't go out and pick the lawyers to represent a class action, lawyers choose themselves and then the judge approves or not.

  36. Seth Owen says

    Anon. Y. Mous's argument is so odious that it's really distasteful to even engage it. Oh, well.

    It's fundamentally the same sort of racist reasoning that led to the internment of US citizens of Japanese ancestry in camps during WW2, and that someone makes the same discredited argument 70 years later just proved we don't learn from history.

    It doesn't matter in the slightest bit what Mexico's citizenship laws are or whether they extend to the offspring of emigrants. Mexico's laws don't get to determine who is qualified to sit as a US judge. OUR law does. By our law the judge an American citizen. I don't know how many naturalized citizens are federal judges, but even in that case their former citizenship, alone, would be no grounds for recusal. But in this case, that doesn't matter. In the immortal words of Newt freaking Gingrich, "He's an American. Period."

    It's similar to the bizarre birther arguments that claim British law made Obama a British subject and therefore ineligible to be president. So what? Seriously. So goddam what? THEY don't get to decide. Parliament could pass an act making everybody descended from the Mayflower pilgrims a British subject and an Earl. So what?

    By Mous's logic the grounds for recusal would be so broad, no human being could possibly be a judge. Every plaintiff and defendant has a gender, a race, ancestors, there would be no end. (As Trump himself has promptly demonstrated by adding Muslims to the groups inherently biased against him.) Inevitably the judge will almost certainly share some attribute with someone on one side or the other. How many judges of Italian ancestry have presided over mafia trials? And what about all those cases presided over by white male judges? I'm sure that in the majority of those cases somebody on one side of the other was a white male? It's stupid.

  37. eric76 says

    It's fundamentally the same sort of racist reasoning that led to the internment of US citizens of Japanese ancestry in camps during WW2, and that someone makes the same discredited argument 70 years later just proved we don't learn from history.

    It has been argued that the Ni'ihau Incident may have had influence on the creation of the internment camps.

  38. Timothy says

    A thought – say Judge Curiel let himself be goaded into an angry response: "Look at how racist TRUMP is, I hate the guy, what a piece of shit, etc., etc. …"

    Would TRUMP then be able to make a plausible argument for recusal due to the judge expressing personal bias? I wonder if his hope was to trigger such a response. Trump's professional reality TV skills work excellently at riling up his usual amateur-hour reality TV politician/journalist foils, but not so much a judge…

  39. Whey Standard says

    @Anon Y. Mous

    Under Mexican law, serving a post in any foreign government without the express authorization of the Congress of the Union strips a national of their citizenship. Considering he has spent over half his adult life in service to the United States government, do you have any proof he even sought this permission before doing so, much less received it?

  40. J R in WV says

    Interesting situation. Commenter says

    If a judge belongs to a race based organization, the judge obviously is, to some extent, tainted by group think – not a trait that makes for good judgment.
    ….

    Now, back to your question: You will have to give me more facts. There is no inherent ethnic or racial element at issue with being a tea-party or Lawyers for Immigration Reform member….

    Two assertions made with no evidence behind either assertion, both assertions set up to support the strange beliefs of the commenter. I see no connection between a judge's membership in an organization, just because someone with an ax to grind claims that organization is race based, then mumbles about group-think, that doesn't make it so.

    Then to claim that membership in organizations expressly founded as racist white power groups contains no inherent ethnic or racial elements… astounding. Day is dark, night is bright, because I say so.

    Ken, I've followed your commenting on legal issues for years, and every so often, I lose you to the vastness of the innertubes, until someone links to you, and I rediscover your interesting page. Keep up the good work!

  41. EAB says

    Actively claims him as a citizen? That's not the way citizenship works. Perhaps you can point me in the right direction. Where does one look to find the list of people that the government of Mexico claims as citizens?

    That would be the list of people who hold Mexican passports or some other documentation like a Mexican birth certificate.

    Secondary citizenship isn't automatic. While you may be *eligible* for it, you still have to formally apply to the government for it to be granted. They have to grant it if you meet the criteria, but until you actually apply, you have neither the rights nor responsibilities of citizenship.

    My husband's mother is from New Zealand, and he was born in the US. He's eligible for NZ birthright citizenship if he ever chooses to apply for it, but he has not done so. He is only a US citizen and does not hold NZ citizenship. He has a US birth certificate which proves that he is a citizen.

    His sister, by contrast, was born in New Zealand, making her an automatic NZ citizen. She was NOT a citizen of the US until her parents applied for her passport a few months after birth, which was automatically granted. She is a dual citizen and could apply for a NZ passport or jobs in NZ simply by providing her birth certificate.

    Mexico's no different. Judge Curiel isn't a Mexican citizen in the eyes of either government until and unless he files paperwork with Mexico to request citizenship and provides proof that he is eligible.

  42. EricMack says

    Maybe the Latina wisdom or Latino wisdom implies a bias that Trump is pointing out.
    That someone of Mexican heritage is against him and prejudiced is not unreasonable.
    Yeah, the robes make everyone above any prejudice. Right.
    That's why we know which way leftists will rule on 99% of Supreme Court cases.
    He's Trumping them.

  43. Mikee says

    RE: Anon Y. Mous

    People born in Indiana, USA, are Americans, they are not Mexican. They might be Mexican-Americans if they so choose, but they are not Mexicans. But you go on ahead and keep thinking that he's Mexican, I'm sure there's absolutely nothing anyone could say to you to change your mind.

  44. Mikee says

    https://www.yahoo.com/news/actions-speak-louder-than-trump-his-own-lawyer-said-the-judge-is-doing-his-job-in-trump-u-case-224338852.html

    "Just three weeks before Donald Trump triggered a national firestorm over his claims that U.S. Judge Gonzalo Curiel was biased against him because of his Mexican heritage, his lead lawyer in the Trump University case praised Curiel for a “sound decision” and said he had no plans to file a motion for him to be recused.

    “The judge is doing his job,” said Daniel Petrocelli, shaking his head, when asked if planned to seek Curiel’s recusal. “We’re not seeking to recuse the judge.”

    So far, anyone with even the slightest understanding of the law does not think Curiel should be recused (which excludes all of the armchair wannabe lawyers in this comment thread, and Trump himself.)

  45. naturalized says

    Has the American political right really fallen so far?

    Some of the posts in here are the most pathetic examples of political argument I have ever seen.

    Thank you Ken for the enlightening post.

  46. OrderoftheQuaff says

    Some of these comments are cracking me up. Ken's lawsplanation is correct. I practiced law from 1980-1995 (until I couldn't stand doing it for another minute), during which time I was known for 1) using any lawful means whatsoever to advance the interests of my clients, and 2) utter shamelessness, and if I could have removed an unfavorable judge merely by attacking his/her ethnicity, I would have never lost a case.

  47. Jon Marcus says

    @Anon Y Mous

    You're confused and inaccurate re dual citizenship. Up until 1998, Mexico did not allow dual citizenship. So contrary to your claim, he has not been a Mexican citizen/held dual citizenship since birth.

    Post-1998, Mexico allowed people like Curiel (foreign-born children of Mexican citizens) to apply for dual citizenship. Curiel has not chosen to make that application. Which choice kinda undercuts your (and Trump's) claim that he is biased towards Mexico.

  48. Ed Peters says

    Ken, Thanks for the very informative article. But I have a few questions. If I understand it correctly, if Trump's lawyers had said the things about the judge that Trump said, they could be sanctioned, correct? Can Trump be sanctioned on these same grounds, i.e. that he a) called into question the judge's impartiality based on his race and ethnicity; b) engaged in conduct that is prejudicial to the administration of justice; or c) engaged in undignified or discourteous conduct which is degrading to a tribunal.

    Or, if all that is just for lawyers, is there any line Trump can step over and be sanctioned by the court? Or can he just say whatever he wants about the judge and the proceedings without fear of sanctions?

  49. Matthew Cline says

    @Jon Marcus:

    Post-1998, Mexico allowed people like Curiel (foreign-born children of Mexican citizens) to apply for dual citizenship. Curiel has not chosen to make that application.

    Well, to play devil's advocate, according to Whey Standard:

    Under Mexican law, serving a post in any foreign government without the express authorization of the Congress of the Union strips a national of their citizenship.

    So let's suppose that Curiel has some plan/desire that requires Mexican citizen sometime in the future, but not right now, and also that Curiel figures that the Mexican law against "serving a post in any foreign government without the express authorization of the Congress of the Union" would make it difficult for him to get Mexican citizenship at the moment. So he waits until after he retires and then requests Mexican citizenship.

  50. says

    I think this is mainly a ploy by Trump to defuse the issue for the election. If he wins the case, he wins. If he loses, he'll say the judge was biased. As you noted, if he really thought the judge was biased, his lawyers could move for recusal. They haven't. So it's a political ploy.

  51. says

    IANAL, but anything Trump files with the court could subject the white women in his family to being raped by Mexican immigrants, most of whom are known gang members. Until you know which gang the judge is affiliated with, it's best not to file anything.

    So, maybe he's doing the safe and sensible thing by letting the case work its way through the media. Won't somebody please think of Ivanka?

  52. PsychoDan says

    @Anon Y. Mous:

    I feel the need to point out the Vincente Fox is not, in fact, the leader of the Mexican government, and hasn't been for a decade now.

  53. Jackn says

    EricMack says

    "Maybe the Latina wisdom or Latino wisdom implies a bias that Trump is pointing out.
    That someone of Mexican heritage is against him and prejudiced is not unreasonable.
    Yeah, the robes make everyone above any prejudice. Right.
    That's why we know which way leftists will rule on 99% of Supreme Court cases.
    He's Trumping them."

    Yes, someone wrote the above paragraph.

  54. Libertymike says

    @JR in WV-

    Do you recognize the cognitive dissonance in your post?

    La Raza's explicit rasion d'etre is to promote and support the Latino legal community. One of the organization's stated goals is to increase the number of Latinos in the legal community. Another goal is to enact legislation favorable to the Latino legal community.

    The tea party and the Lawyers for Immigration Reform are not organizations which reserve membership exclusively for white people. There is no evidence to support the proposition that the two organizations were conceived by and for "white power" – an amorphous, non-sense term utterly untethered to reality.

    If an individual of Latino heritage joins an organization devoted to the promotion of Latinos, by definition, the individual is motivated to join a group based upon ethnicity. It is not a hallmark of individualism to join a group designed to further the cause of an ethnicity. People who join such organizations are far more likely to be captured by, and beholden to, group think.

  55. eric76 says

    The tea party and the Lawyers for Immigration Reform are not organizations which reserve membership exclusively for white people.

    I understand that the San Diego La Raza Lawyers Association is not exclusively for latinos. In fact, their membership rules in their by-laws does not mention race at all:

    Section 4.1 Membership Classifications. The Corporation shall consist of the following classes of members:

    (a) Attorney Members. All attorneys in good standing under the State Bar of any state in the United States or the District of Columbia are eligible for regular membership in the Corporation. Attorney members shall have all rights and privileges of regular membership in the Corporation.

    (b) Judicial Members. All judicial officers in good standing of any local, state or federal tribunal are eligible for judicial membership in the Corporation. Judicial members shall not serve as a director or officer of the Corporation. Except as provided herein, judicial members shall have all the rights and privileges of regular membership in the Corporation.

    (c) Law Student Members. All students actively enrolled in any organized law school in any state in the United States are eligible for law student membership in the Corporation. Law student members shall not have any voting rights, nor shall they serve as a director or officer of the Corporation. Except as provided herein, law student members shall have all other rights and privileges of regular membership in the Corporation.

    (d) Honorary Members. Persons distinguished for public service or eminence in the law may be elected to honorary membership by vote of the majority of the members of the Board. Honorary members shall not pay membership dues, shall not have any voting rights and shall not serve as a director or officer of the Corporation. Except as provided herein, honorary members shall have all of the rights and privileges of regular membership in the Corporation.

    It's interesting that judges may not serve as a director or officer of the organization.

  56. Richard says

    @Libertymik

    People who join such organizations are far more likely to be captured by, and beholden to, group think.

    But where is the evidence that this judge is captured by and beholden to group think? This is the problem. You argue that due to affiliation with organizations that are predominantly associated with certain ethnicities, that a judge is automatically presumed to be biased on topics that can in any way be a topic of concern for that ethnicity. That is a racist argument. Take away the ethnic ties and consider any group membership, then the argument simply becomes dumb.

    You can speak in generalities all you want, but the legal process deals with specifics.

  57. Jessica Reagan says

    OMG, Judges are capable of so much with their power. In fact the longer they are on the bench in one specific are or court room, the worse they get. I had to file a judicial conduct complaint to get a judge to recuse himself. It took a year but he finally did it. Judges are not supposed to feel any attachment towards a particular case. Its always better to recuse your self IMMEDIATELY once you know its been brought up. The possibility of judicial conduct complaint is raised by FIGHTING to stay on a case. It shows you ARE PARTIAL. YOU HAVE AN AGENDA. Judges cannot deny they feel powerful. Please use common sense readers. recusal is COMMON. The judge and the media are making a huge deal out of something that is routine.

  58. Brian Z says

    @Libertymike

    It is not a hallmark of individualism to join a group designed to further the cause of an ethnicity. People who join such organizations are far more likely to be captured by, and beholden to, group think.

    It's not the hallmark of individualism to join any group. Joining any group makes an individual susceptible to groupthink.

    I feel sort of insane for needing to point this out, but an individual can join a group and maintain his own identity and thought process. And membership in a group need not necessarily mean an individual has succumbed to groupthink.

    Some groups may have practice, culture, or doctrine which may make members more likely to engage in groupthink. Some groups attract participants predisposed to groupthink. But I think what's happening here is that Curiel is a member of a group you don't like — ergo groupthink/bad!

    You haven't really explained why his Latino Lawyer group is worse than the Tea Party. It's not obvious.

  59. Libertymike says

    Yes, joining any group, in and of itself, does not necessarily mean that one will or has succumbed to group think. If you read my posts carefully, you will recognize that there is nothing that I wrote that would foreclose that possibility.

    I do not like any organizations the purpose of which is to promote the advancement of a particular ethnicity or race. The National Council of La Raza is a virulent racist organization. One of its former presidents, Raul Yzaguirre, Hillary Clinton's Hispanic outreach advisor said: "English to Hispanics as the Klu Klux Klan is to blacks."

    The organization also sponsors militant ethnic charter schools subsidized by taxpayers, including the Aztlan Academy in Tucson and Academia Semillas del Pueblo in Los Angeles, whose principal said the following:

    "We don't want to drink from a white water fountain, we have our own wells and our own natural reservoirs and our way of collecting rain in our aqueducts. We don't need a White water fountain… ultimately the White way, the American way, the neo liberal, capitalist way."

    How about looking at the stated goals, the mission, and the objectives of La Raza and compare them to the Lawyers for Immigration Reform. Does the latter group promote that which the La Raza does?

  60. Dictatortot says

    Ken's article touches upon a more fundamental question, and to me a more interesting (though ominous) one: if it isn't happening already, can the prevailing public standard of "reasonableness" shift to an extent, and in such a direction, as to make us revisit all the laws based on it? In other words, what if a critical mass of citizens ends up so removed from what was once regarded as reasonable that a "well-informed, thoughtful, and objective observer" can't be used as even a tenuous way of representing the civic judgment of the populus? Do we have to adjust the "reasonable man" standard? Such questions used to strike me as purely hypothetical.

  61. Brian Z says

    I'm Catholic. I understand what it's like to be a member of a group that has members who have done or said vile things (also done/said stupid things). I'm sure there are some earnest Tea Party members who wouldn't want their job-fitness to be determined based on untextualized quotes by some of their more… enthusiastic fellows.

    I suppose I would be interested if it were shown that Judge Curiel agreed with the idea that "Latinos should not drink water the white way," but I don't think that's the case. Any organization can be Nutpicked.

    I encourage you to disagree with a group's agenda if you are so inclined, but I think you should refrain from automatic guilt-by-association. Now, regarding the issue at hand (remember the Trump University class-action suit, the thing that has fuck-all to do with Mexico?), I'm sure Judge Curiel will continue to do his job just fine.

  62. EAB says

    The organization also sponsors militant ethnic charter schools subsidized by taxpayers

    So wait, let me get this straight. A principal at a private school, to which parents can voluntarily send their children, said something stupid. His school receives some funding from an organization which has kind of the same name as an organization to which a judge belongs.

    Why, it's almost like being a judge affiliated with a Christian lawyers organization, given that other Christian organizations give funding to charter schools with dubious viewpoints. ESCANDELO!

    We better also be really worried about terrorist leanings of anyone affiliated with Ancient Order of Hibernians, because they're a Catholic-Irish fraternal organization and so is the Irish Republican Army. I'm glad we never had any of their members elected president or anything, since obviously such a person would be naturally biased and incapable of objectivity.

  63. Patrick Henry, the 2nd says

    EricMack says
    JUNE 6, 2016 AT 6:30 PM

    That someone of Mexican heritage is against him and prejudiced is not unreasonable.

    Yes, yes it is. I believe there even is a term for that.

  64. Patrick Henry, the 2nd says

    Libertymike says
    JUNE 7, 2016 AT 8:28 AM

    The National Council of La Raza is a virulent racist organization.

    You do realize that he's not a member of that organization, and he is a member of a totally separate one with a similar name?

  65. Easter Island Sally says

    I'm convinced by LibertyMike's quotes from the National Council of La Raza, which clearly express the position of the San Diego La Raza Lawyers Ass'n.

    I look forward to the filing of war-crimes charges against the American Legion for the Condor Legion's bombing of Guernica. We also need to hold the members of the Congressional Black Caucus accountable for Black September's conduct at the 1972 Olympics.

  66. AlphaCentauri says

    Look at the editorials published in American Medical News, then look at the letters to the editors submitted by actual AMA members to get an idea how little you can judge a professional society member by the public policy statements of the organization.

  67. Total says

    Libertymike, with much horror, quoted this:

    We don't want to drink from a white water fountain

    You realize that he's invoking segregation and "white" fountains vs. "colored" fountains? That he's making a historical allusion to the way in which Hispanics were second class citizens in a segregated (formally or informally) United States?

    No, I suppose you didn't.

  68. eric76 says

    You do realize that he's not a member of that organization, and he is a member of a totally separate one with a similar name?

    I would have thought that being called the "La Raza Lawyers Association" instead of the "La Raza National Council" would have tipped him off.

    Here in Texas we have a West Texas A&M University and a West Texas Turkish American Student Organization. In spite of the similar name, not only are they are quite different, but if you wanted to find the West Texas Turkish American Student Organization, you would have to go to Texas Tech University in Lubbock, not to West Texas A&M University in Canyon.

  69. says

    (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

    "The HNBA calls for a boycott of *all of Trump business ventures*, including golf courses, hotels, and restaurants. " "**" mine.
    http://bit.ly/25Kx1oj

    Appearance of by way of the organization's actions rather than simply by the judge's membership therein.

  70. Tim says

    WOW…… the comments section has been invaded by some Trump trolls today guys.

    I wonder if the blind adoration that causes the verbal and logical backflips is a product of a "Me Against the World" attitude or if it's an Omega response to please the Alpha in the room?

  71. John C says

    Good post. And bravo to whomever brought Petrocelli's comments forward.

    At bottom, yes, as someone who has actually practiced in federal court (in California if that matters), litigants would abuse precedent which would hold that questioning impartiality should be grounds for getting a change in judges, especially once a litigant started receiving adverse rulings. And this isn't a minor thing, federal courts are – by design – difficult to get one's case into in the first instance. (And unlike in California Superior Court, there is no disqualification by right.) Allowing judge shopping like some would purport to allow would make a mess of the federal court system. With each bad ruling, a new motion to disqualify would be filed.

    At bottom, Petrocelli's comments are spot-on. And he's the one who would have to sign a motion to disqualify under Rule 11. The comments are ridiculous but serious media members should ask the litigant why he's choosing to fight this battle in the media and in speeches rather that put this forward in the appropriate forum.

  72. Puckerup says

    The judge is a paying member of a group that specifically called for a boycott of all the defendant's (Trump) businesses and calls Trump racist.
    No, not La Raza – the Hispanic National Bar Association.

  73. Alareth says

    I think another case of "generated" bias worth discussing would be Joe Arpaio's hiring of a private investigator to follow the wife of the Judge Snow.

    I saw some people at the time saying that he should be forced to recuse himself because he was now "Personally involved"

  74. Puckerup says

    I don't think you can say Trump "generated" bias either.
    1) He didn't force the HNBA to call for his boycott. They did that all on their own. They didn't just denounce his comments which would be understandable; they called for a total boycott of all his businesses.
    They praised businesses that disassociated with Trump, and encouraged other businesses to do so as well. The HNBA president declared that the association, of which this judge was and remains a member, calls for the boycott in retaliation to Trump's statements.
    2) The HNBA would've known one of their members was over his case when they called for the boycott.

  75. eric76 says

    I don't think you can say Trump "generated" bias either.

    If Trump didn't generate any bias by his comments, then the judge could not have been biased by them and therefore there is no reason for the judge to recuse himself.

  76. Puckerup says

    The judge would be biased because his group called for a Trump boycott, and he remains a member.
    He is a member of a group that called for action to impede his defendant's businesses – one of which is before the court.
    Trump can say any racist thing he wants, and the judge can disagree while still being impartial.
    But, the moment the judge's group called for action and retaliation for those statements? That's where the question of bias arises.

  77. eric76 says

    I have been members of groups with whom I didn't see eye to eye with on many occasions. No group of which I'm a member speaks for me.

    You are suggesting that merely being a member of a bar association renders a judge incapable of being independent of the group. That is, of course, nonsense.

  78. Puckerup says

    I'm saying you are choosing not to be independent by continuing to be a member while your defendant watches your membership (support) and group attack him – not just disagree with him; attack him personally and financially.
    Very different than just not seeing eye to eye with defendant or group.
    Support political causes, etc. But, membership in a group attacking your defendant publicly, personally, and financially? I think a reasonable person with the facts might question impartiality there.
    You can claim you are impartial, and you may be. But, would a reasonable person believe you?

    Have you ever given your support to a group who is outright attacking the defendant in your courtroom?

  79. Richard Smart says

    Dear Ken,

    Your interlocutor remarked, "So all federal judges are dudes?" This reminded me that the Donald has a sister Trump, and that the sister Trump is a federal judge, and apparently a very good one, and lastly that she is far from flavor of the campaign with the GOP because, of course, she issued a judgement or two that might be interpreted as anti-life, or pro-abortion, take your pick.

    Trump is trying to backtrack from his attempt to blacken the name of Judge Curiel. I do wonder if his sister kicked him in the shins.

  80. Total says

    You can claim you are impartial, and you may be. But, would a reasonable person believe you?

    Yes. There, that was easy.

  81. Brian Z says

    But, the moment the judge's group called for action and retaliation for those statements? That's where the question of bias arises.

    Not according to your candidate. He said bias arises because he's trying to build a wall and the judge is Mexican. Stay on message.

  82. Puckerup says

    Sorry, he's never been my candidate.

    Do I think it's possible he believes his desire to build a wall (i.e. immigration policy positions) is what instigated retaliation or opposition from groups? Sure.
    Do I think it's possible he believes the judge's affiliation with ethnic based groups that have taken issue with said policy positions, like the one boycotting him, creates bias? Sure.

    I don't see a problem until a judge's money and support is given to a group that is actively attacking a defendant personally and financially.

  83. King Squirrel says

    By willingly joining this comment thread I feel I am showing a strong pro-thread bias and call on myself to recuse myself from discussion or judgement of any matters involving this comment thread.

    *throws distracting smoke bomb*

  84. Total says

    I don't see a problem until a judge's money and support is given to a group that is actively attacking a defendant personally and financially.

    By that logic, a judge couldn't ever even vote, because he/she might be giving their support to someone who opposes someone who might be in their court room. The judge voted Democratic/Republican and they have Republicans/Democrats in their court room! AAAAGH!

    Try to demonstrate some actual bias, please.

  85. Puckerup says

    I don't think politically opposing someone is the same as calling for and acting on attacking them financially in an attempt to harm them personally.

    Keep in mind the boycott was called for in July of 2015 and wasn't because of the more recent Trump statements specifically against the judge.

  86. mythago says

    To address @Libertymike's abandoned point early in the thread, we absolutely know that lawyers would use the recusal excuse because they already do.

    In California, litigants get one free strike the first time they appear in front of a judge. Under California Code of Civil Procedure 170.6, each 'side' can state under oath that they believe the judge is biased against themselves, their client, or theirs or their client's interests such that they cannot receive a fair hearing, and they must be reassigned a different judge. (This is only once per case, and once per 'side'; in a multiple-party case, you don't get each plaintiff or each defendant getting a separate strike.)

    In theory, this is supposed to be used only when a party believes there is grave judicial bias. In actuality, this means that everybody gets the equivalent of a peremptory challenge against a judge they are assigned to. Large courts like Los Angeles have pre-printed forms when a case is assigned to a trial judge, where the lawyers fill out either the 'we accept this judge' or 'we exercise a 170.6 challenge to this judge' form so as to create a written record for the file.

  87. says

    @mythago

    And recusals are abused institutionally as well. For instance, if a judge makes a ruling that DAs believe is too lenient (or insufficiently deferential to prosecutors and cops), the DA's office of a particularly county will sometimes file a 170.6 in every criminal case coming to the judge, to effectively force them out of hearing new criminal cases.

  88. Patrick Henry, the 2nd says

    Puckerup says
    JUNE 7, 2016 AT 4:11 PM

    I'm saying you are choosing not to be independent by continuing to be a member while your defendant watches your membership (support) and group attack him – not just disagree with him; attack him personally and financially.
    Very different than just not seeing eye to eye with defendant or group.
    Support political causes, etc. But, membership in a group attacking your defendant publicly, personally, and financially?

    That presumes that A) the person is aware that their group did that and B) they actually supported that.

    You realize that you can oppose what your group is doing while still remaining a member, right?

  89. mcinsand says

    Patrick Henry, the 2nd,

    >>You realize that you can oppose what your group is doing while still remaining a member,
    >>right?

    You're getting to the heart of why our political parties are so dysfunctional, among other things. Both sides squash internal dissent even as they both need those party-loyal critics to address the problems.

    I have trouble believing that any of the posters actually believes that belonging to a group automatically implies endorsement (active or inactive) of all of that group's positions. That's simply ridiculous. Some people get desperate for a leg to stand on, though, when they want to oppose someone criticizing their side.

  90. Trent says

    As a former DA are you speaking from experience there Ken? Just out of curiosity, mind you.

  91. Jesse says

    Where did common sense go to die? So many statements are demonstrably false or just dumb.

    – Judge recusal is NOT common. I've litigated hundreds of cases and had a half dozen recusals. My client ran against the judge or family member in an election. The judge was a member of some firm adverse to my client. Judge and I are friends and upon disclosure the adverse party requested a recusal. There has to be a real, solid reason for it. Particularly at the Federal level where there generally isn't 30 judges in every district.

    – There is no evidence that the judge is a Mexican citizen. There is speculation that he may be eligible to be a Mexican citizen and speculation that he may not be (due to civil service). And it does not matter at all under the recusal law one way or another.

    – The Judges family was in the US before Trump's own mother came to the US. The Judge is married to an all American girl, Trump has married three foreigners. The Judge owns no overseas property, Trump does. The Judge doesn't hang out with royals and dictator princes from other countries, Trump does. Are we sure Trump is a REAL American? (Whatever the hell that means)

    – Lets make a list so we can keep this straight:

    _Muslims, Mexicans, and presumably women cannot hear Trump cases. By extension, a judge who is a Trump supporter cannot hear cases from Muslims, Mexicans, or women.

    _I assume Jews cant hear Muslim cases and visa versa.

    _A Shiite Muslim Judge cannot hear cases from Jews or Sunni Muslim. But the Sunni Muslim couldn't hear cases from Hindus, nor Hindus from Shiite.

    _A member of the NRA can't hear a case from someone is a member of the Brady Foundation, since each has called for protests and boycotts of the other.

    _Presumably a Democrat can't hear the case of a Republican.

    — Now, what do we do when one litigant is a Mexican Shiite Muslim card carrying NRA member who is a Republican and supports Trump, and the other is a Jewish Brady Foundation Democrat who is anti immigration and doesn't support Trump? How do we find a judge who isn't automatically disqualified? "Excuse me, Buddha. Can you try this case for us?"

  92. Bob says

    I love these new proposed bias/recusal rules. If my judge is nonwhite and rules against one of my motions, I'll just accuse him of being racist, or of being biased against me because I'm racist. And if the judge is white and rules against my motions, I'll accuse him of being reverse racist! Bwahahaha.

  93. Mike Schilling says

    Only if you pretend the last century of law didn't happen.

    In other words, if you're Clarence Thomas.

  94. Mike Schilling says

    Anon Y Mous's argument is the same one used to justify the rendition and torture of Maher Arar. He had applied for and been granted Canadian citizenship, but had never officially renounced his prior Syrian citizenship, so, obviously a terrorist.

  95. Aaron says

    @Libertymike One of its former presidents, Raul Yzaguirre, Hillary Clinton's Hispanic outreach advisor said: "English to Hispanics as the Klu Klux Klan is to blacks."

    As much as I hate to drag myself into this cesspit of a comment thread, that quote was mangled and nonsensical enough that I had to look it up and see if I could find evidence of it being said and of its contents. So here goes:

    The actual quote was "US English is to Hispanics as the Ku Klux Klan is to blacks." I know this may not seem very different, but note that "US English" refers to an organization and not the language. The organization is devoted to making English the official language of the United States. There has long been controversy over their reasons for this, which came to a head when a memo leaked that seemed to suggest that the organization's leadership thought "Whites [would] see their power and control over their lives declining" due to fast-breeding Hispanics.*

    So, a bit of cursory research shows your mangled quote to be both out of context and not actually evidence of any kind of racism, never mind that it's from a different organization entirely than the one Curiel's a member of.

    * You can read the full memo to determine for yourself if you agree with my characterization of it.

  96. Latrina Cohen says

    I really like seeing all these defences of Judge Curiel given his blatantly obvious political and ethnic activism, all of which is blatantly obvious and confirmable with a minute of research (look up recent political actions undertaken by the HNBA). When the response to people pointing out an obvious, severe conflict of interest is to call them uneducated idiots who don't understand the law, you further degrade the reputation of the legal profession – helping to drag it down to the level currently occupied by the media and congress.

  97. Jesse says

    @Latrina

    Obviously you don't understand that simply by obviously saying its obvious it doesn't necessarily make it fact.

    The judge is a member of national bar association that has over 100,000 members. It's mission is to "To improve the quality and the administration of justice by advocating for the interests of Hispanic attorneys, judges, law professors, paralegals, legal assistants and law students." Most of the time, that means speaking out about topics of interest to their members and holding an annual convention. When a high profile political candidate bashes your organization and says that Hispanic judges aren't qualified to hear his cases – they called for a boycott of the offending person's businesses (hard to get more American than a boycott. Free speech dating back to the founders). Directly in line with their mission statement.

    Obviously I'm missing something obvious. Do you have any idea how many bar associations there are that advance interests? Real estate bar. Entrepreneur bar. Trial lawyers bar. Insurance defense bar. Hispanic, black, Catholic, Baptist, Armenian, Asian Pacific, and on and on and on and on…

    As has been obviously stated above, its obvious that your obvious rule would obviously result in nearly every judge obviously being forced off every case because obviously each one would be obviously biased to one party or the other.

    You're statement about uneducated idiots obviously applies.

  98. Puckerup says

    @Jesse,
    The HNBA called for the boycott last July, and it wasn't because of Trump's comments on Curiel.
    I don't think most would have a problem with the HNBA denouncing any of his prior or recent comments. I do believe it reaches a different level when the group the judge is a paying member of attacks to inflict financial harm on his businesses. Something more than disagreement is happening, and the judge is helping to finance that action.

  99. says

    Jesse

    . When a high profile political candidate bashes your organization and says that Hispanic judges aren't qualified to hear his cases – they called for a boycott of the offending person's businesses

    The Hispanic National Bar Association. called for the boycott in response to Trump's Mexico is not sending their best/ They are sending Rapists comments.

    the attack is deliberately dishonest because it conflates a bar association with a political advocacy group,

    The Donald and The Judge

    Now, I have seen some progs try to spin this all by saying that this La Raza is not the same as the other La Raza, and that THIS La Raza is apolitical . . . yeah, yeah. Go to this La Raza's Mission statement, …In addition, it has an endorsement page which lists candidates that it endorses, and you can read up on all it's doing on behalf of "transgender" Latinos, etc. In other words, it's a classic leftist advocacy group.

  100. Lagaya1 says

    Obviously as an American, he should not be allowed to preside over any cases involving Americans. I heard he even had a Fourth of July celebration last year!

  101. Patrick Maupin says

    @Puckerup:

    You still don't get it, do you?

    The national PTA lobbies hard for gun control. Do you really think that every PTA member fully supports that agenda?

  102. Puckerup says

    @Patrick,
    I don't believe every member of each association agrees with every policy position or action the group takes.
    However, as a defendant, it wouldn't change the fact that the judge's money and membership is part of what makes that PERSONAL AND FINANCIAL attack on me possible. And, the judge's money and membership is a party to my personal financial attack.
    Policy advocacy, lobbying politicians, etc is a different action than singling out a specific person in society to target and harm. The PTA can lobby for gun control with a member judge presiding over a case against an anti-gun control person with no questions raised about impartiality. The PTA can even call for a boycott of all gun stores without question about a judge's impartiality even if a defendant is a gun store owner.
    But, those are different than the PTA calling for a boycott of specifically Mr Smith's businesses (which aren't even gun stores; Mr Smith might be a florist) to inflict personal financial harm on Mr Smith. As a defendant, Mr Smith should be able to question impartiality knowing the judge's money and membership is a part of that specific personal and financial attack on his businesses.
    Hiding behind "it's just a bar association" doesn't cut it. It's an advocacy group, and it's one that has gone beyond advocating for or against causes or political issues. It has even gone beyond just disagreement with specific citizens that may be defendants before a member judge.

  103. Latrina Cohen says

    @Jesse

    Your implication that I am an uneducated idiot is rather humorous given that you make blatantly obvious misstatements of fact regarding the HNBA and the timing of their boycott. Membership in an organisation which has launched a boycott against one of the participants in a trial, on top of the conflict between La Raza's ethnic activism and Trump's positions, present what would clearly be a conflict of interest to any impartial observer.

    While I'm aware that the actual law of the situation says that there's no need for Curiel to recuse himself, this has no bearing on my statement – that the average person will lose trust in and respect for the legal system as a result of what happened due to the appearance of bias (made all the more egregious by his "mistaken" unsealing of certain records).

  104. Patrick Maupin says

    @Latrina Cohen:

    So do you believe that a judge who joins the PTA at his kid's school should recuse himself from hearing a case about the legality of firearms?

  105. Latrina Cohen says

    @Patrick Maupin

    If the PTA in question had previously announced a boycott of a firearms company and was associated with/shared a name with an organisation devoted to the cause of disarmament, yes. Barring extenuating circumstances, however, I'd say no.

  106. Patrick Maupin says

    So it's OK to belong to a group that attempts to use the government to damage all firearm manufacturers, but it wouldn't be OK to belong to a group that eschews government coercion and simply directly asks like-minded people to not buy guns?

    (But only if it had a bad name, of course — almost forgot that part.)

  107. Trent says

    @Latrina Cohen:

    Frankly I'm quite glad that most of us in this world aren't malleable brain washed zombies that do whatever we are told. That being a member of a professional society doesn't ascribe me to everything that professional society does is because I'm a independent thinking being that makes up my own mind about positions by weighing the facts, not asks my professional association what to believe. For example, my professional organization believes that people in my career should be required to have masters degrees to practice our careers. This is the result of a couple of overeducated pricks (I worked for one of the prime instigators of this campaign) within the professional association who gained executive positions. I do not share this view.

    What you're saying is that sheer membership with the organization means I'm incapable making this decision and that I should automatically be assumed to support and advocate for that position just because I'm a member. Do you know what I say to that? Maybe people tell you want to think and you do as you're told, but I don't and neither do the vast majority of Americans. It's just you that believes what you are told and you shouldn't assume the rest of us do the same.

  108. Latrina Cohen says

    @Patrick Maupin

    What exactly were you referring to when you said PTA? I assumed you meant Parent-teacher association, and as far as I can tell there isn't necessarily anything tying those to some other anti firearm group. If you're a member of an organisation which takes clear stands on an issue, you should recuse yourself from cases where that could present the appearance of impartiality. A minor confusion of fact on my part (not knowing which PTA you are referring to and their position on firearms) doesn't change that.

    Your second point, about "bad names", is worth addressing however. La Raza, the Hispanic National Bar Association and the San Diego La Raza Lawyers are indeed separate organisations – but they all have common principles and two of them at least have been involved with anti-Trump political action (unless you consider the HNBA boycott meaningless). If a judge was a member of the Aryan Brotherhood Minnesota Lawyers association and had worked for the KKK Bar Association, I'd expect him to recuse himself from a trial involving a hispanic presidential candidate who was the target of violent protests from the Aryan Brotherhood. Once again, I'm talking about public perception of the legal system as opposed to the letter of the law.

    @Trent

    So if a tutsi plaintiff discovered that the judge in their case was a member of the Impuzamugambi, you'd have no problem if the judge refused to recuse himself under the same logic contained in your post?

  109. Patrick Maupin says

    There must be a variant of Godwin's law that covers a comparison between a US-based professional association of attorneys and a genocidal militia.

    In any case, I'm done here.

  110. SirWired says

    I doubt he'll see this but:

    LibertyMike: What if the OTHER party calls into question the impartiality of the replacement judge (for similarly spurious reasons.)

    Let's take a simple case:
    – Man sues woman for, say, sexual harassment.
    – Female judge assigned.
    – Male complains that because the female judge once gave a speech to State Association of Female Lawyers, and is female, she's going to be biased against men.
    – Male judge assigned.
    – Female complains that because she found a picture of the male judge attending a golf tournament at a male-only club, and is a guy, she doesn't think he'll give her a fair shake.
    – A new judge is assigned (also male)
    – Whoops! Ten years before becoming a judge, he donated to a candidate that voted against the ERA.
    – Female judge assigned
    – Dammit… a great-niece of hers just went through a bad divorce and didn't win custody of her kids; clearly the judge is gonna be a man-hater.

    When does the cycle stop? There's a reason we have rules saying that lawyers need something better than gender/race/religion/pre-judicial activities/etc. to call for recusal.

  111. Observer says

    Let's add two facts to the Curiel hypo. Assume that these facts have been demonstrated
    (you may do your own research, of course, to verify this).

    Let us assume that the judge filled out a questionnaire for the Senate Judiciary Committee prior to his judicial confirmation hearing. Assume further that he listed lifetime membership
    in the NHBA (National Hispanic Bar Association). Let us assume that on July 2, 2015 that group, of which the judge is still a member, began a nationwide boycott movement against all of Trump's businesses, and widely circulated a press release attesting to that fact, and that press release is still on the group's website. (Simply google "curiel boycott" for links to all the documents).

    Let's assume further that on that same questionnaire, the judge listed membership in another group, "La Raza Lawyers". Let's assume that the founder of that group said publicly
    (see his obituary in the NY Times) that "All white people in California should return to Europe."

    Now, with these added facts, do you believe the court should recuse?
    With these added facts, do you believe that a litigant in Trump's position should perceive some potential for unfairness?

    Just for some context and as an aid to analysis, add to the hypo that in California, state judges (not fed.) were precluded by the Canons of Ethics (specific rule) from holding membership in the Boy Scouts of America until such time as that organization changed its rules and allowed gay scoutmasters to serve. The reasoning was the a gay litigant appearing before a judge with BSA ties would perceive that the court was unfair. This violation of this state canon could result in private admonishment, pubic censure, and even removal.

    I welcome your thoughts. And please don't say "b.s.". Assume these facts are true and then tell me what you think the outcome should be–recusal? Judge publicly resigns from group or groups? Judge privately resigns from group or groups and makes disclosure to litigants? Judge says nothing?

  112. Patrick Maupin says

    Your search – "All white people in California should return to Europe." "La Raza Lawyers" – did not match any documents.

    That's not a quote, and not even a good paraphrase of Obledo's pithy statement that explains that Hispanics in California are a growing population that is increasingly exercising their political clout, and that Californians can deal with that or leave.

    IOW, you're a terrible observer.

  113. Alex says

    It is actually horrifying the arguments that Trump-supporting lawyers or law-types make with a straight face.

  114. Doug says

    The political firestorm has the Democrats accusing Trump of being a racist.

    But wait a minute. The Obama administration DOJ issued a blanket recusal ordering judges to recuse themselves based on their ethnicity. Imagine that. You won't see an apology from the press for creating a Trump as racist meme. You won't hear about the Obama DOJ doing exactly the same thing.

    This double standard won't be revealed. Because the press is corrupt.

    This info will never see the light of day. Rejoice liberals.

    http://www.npr.org/sections/thetwo-way/2015/11/03/454394225/government-settles-lawsuit-filed-by-iranian-american-judge

  115. Federal Litigator says

    I currently have a case pending in the Southern District of California before Judge Curiel. I'm not commenting here on prejudice re: Trump. However, I can tell you that if Curiel does not like a particular lawyer or party (for whatever reason) he will go out of his way to find reasons to rule against them. Luckily, the judge likes me, but hates the attorney on the other side. On a number of motions, the Judge has ruled against my opponent based on really minor points and/or obscure case law that we didn't even mention in our papers. I'd really hate to get on Curiel's bad side. I'm not a Trump supporter by any means, but I can understand how he might be frustrated with Curiel's rulings. I don't think he is a very good judge. Most of the time at oral argument he just sits on the bench and does not engage the attorneys. Plus, he is very slow. He takes months to issue orders on routine matters.

  116. Guy who looks things up says

    @Doug

    You should read the articles before you link to them.

    The Obama administration DOJ issued a blanket recusal ordering judges to recuse themselves based on their ethnicity

    The article reports on a conflict between one judge and her superiors at DOJ, so not a blanket order.

    The order was issued to this one judge because she attended a meeting with other Iranian-American officials, not because of her ethnic background.

    And the DOJ backed down when the judge pushed back via lawsuit.

    I know it makes for a better conspiracy theory if you leave out a few facts.

    This double standard won't be revealed. Because the press is corrupt.

    My irony meter is pegged right now. The story appeared on the NPR website. You know, National Public Radio, which the self-proclaimed conservatives in Congress keep trying to defund because it exposes their activities.

  117. Total says

    Assume these facts are true

    Actually, I don't think I'll assume those facts. Do you have anything else?

Trackbacks

  1. […] Ken White has a great lawsplainer on the rules of recusal and bias. The TL;DR version is that Trump is full of it (surprise!). First of all, his lawyers haven't asked for a recusal. Second of all, the reason they haven't asked for a recusal is because demanding a judge recuse himself simply because he's "Mexican" (Curiel is a first-generation American born in Indiana) wouldn't work: […]

  2. […] Much interest has been raise by the intersection of Donald Trump's "complaint" about United States District Judge Gonzalo Curiel's "bias," and the efficacy of seeking the judge's recusal not because there is any legitimacy to the bias argument itself, but that Trump's making a stink about Judge Curiel's heritage and associations creates a new level of antagonism.  This, of course, gives rise to no legal basis to seek recusal. […]