Michael Gaynor
Mr. Trump, like all litigants, you deserve a fair judge, not a "high tech lynching" for noting a judge's Mexican ancestry in trying to explain a judge's "unfair" rulings
By Michael Gaynor
June 8, 2016

This latest attack on you is similar to Megyn Kelly, in attack mode, insinuating at the first Republican presidential aspirants debate that you had called all women pigs when you had described only a few women that way and ignoring the context in which you had spoken about those few.

Message to presumptive Republican presidential nominee Donald Trump:

Justice Clarence Thomas did not back down. Instead, he stood strong, stared down an attempted "high tech lynching" and won confirmation as an Associate Justice of the United States Supreme Court.

Follow his example.

Stand strong against the attempted high tech lynching from the forces determined to keep you from becoming President and frightened Republican politicians who have adopted their spin for pathetic reasons.

You asserted that a federal district court judge (Gonzalo Curiel) presiding over a class action against Trump University was unfair in making rulings in the case and then tried to explain why by referring to the judge's Mexican ancestry.

I am not in a position to opine on whether any of the rulings you consider to be unfair were fair or unfair, but there should be no dispute that you are entitled to your opinion and to explain it.

Unfortunately (but not unpredictably), the focus immediately was put on the fact that you had dared to describe the judge as "Mexican," as though in referring to the judge's Mexican ancestry you somehow asserted that the judge was not a United States citizen and that all judges of Mexican ancestry cannot be fair.

You did neither, but your critics trumpeted that baseless racist charge against you.

This latest attack on you is similar to Megyn Kelly, in attack mode, insinuating at the first Republican presidential aspirants debate that you had called all women pigs when you had described only a few women that way and ignoring the context in which you had spoken about those few.

Again the Left predictably pounced.

Sadly, even some prominent Republicans who know or should know better proved to be more interested in posing and pandering than in guaranteeing you and everyone else a judiciary that is impartial both in fact and in appearance.

This brouhaha calls to mind the contested confirmation process of Justice Sonia Sotomayor, who shares your penchant for candor, but not your political views.

I wrote about that confirmation process at the time.

I quoted the take of Ed Whelan of the Ethics and Public Policy Center on Justice Sotomayor's confirmation testimony, as follows: "Judge Sotomayor deserves an A+ for brazen doublespeak. She emphatically rejected the lawless 'empathy' standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality. She hid behind a ridiculously simplistic caricature of judging that embarrassed and disgusted her most vociferous backers, but she never recognized any meaningful bounds on the role of a Supreme Court justice. She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago."

In "Wise Wendy Long & Stuart Taylor v. "wise Latina" Sonia Sotomayor" (www.renewamerica.com/ columns/gaynor/090722), I highlighted these revealing juxtapositions made by Taylor of Justice Sotomayor's pre-confirmation hearing and confirmation hearing statements.

"Berkeley speech: 'I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.'

"(Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., purporting at one point to quote this sentence, could not bring himself to quote it correctly. He omitted the words 'a better conclusion than a white male' and inserted 'wise decisions' in their place.)

"Testimony: 'I do not believe that any ethnic, racial, or gender group has an advantage in sound judging.... [I did not intend] to say that we could really make wiser and fairer decisions.'

"Sotomayor added that the 'wise Latina' line had been "a rhetorical flourish that fell flat,' One intended to inspire young Latinos by telling them 'that our life experiences do permit us to see some facts and understand them more easily than others.' Her word choice, Sotomayor added, 'was bad because it left an impression that I believe that life experiences commanded a result in a case.' She did not explain why she repeated the same rhetorical flourish so many times or why her way of inspiring young Hispanics was to suggest that they are 'better' than white males.

"Berkeley speech: 'Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.... I am ... not so sure that I agree with the statement.'

"Testimony: 'The words that I used, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey. I understood that sentiment to be that both men and women were equally capable of being wise and fair judges.'

"Berkeley speech: 'Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less than [a colleague], our gender and national origins may and will make a difference in our judging.'

"Testimony: 'There are in the law – there have been upheld in certain situations that certain job positions have a requirement for a certain amount of strength or other characteristics that maybe ... a person who fits that characteristics and have [sic] that job.... I certainly wasn't intending to suggest that there would be a difference that affected the outcome. I talked about there being a possibility that it could affect the process of judging.'

"Berkeley speech: '[The same colleague] believes that judges must transcend their personal sympathies and prejudices.... Although I agree with and attempt to work toward [that] aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.'

"Testimony: 'What I was speaking about ... is, life experiences ... can affect what we see or how we feel.... But I wasn't encouraging the belief or attempting to encourage the belief that I thought that that should drive the result.' She also said that 'as a judge, I don't make law' and 'I apply the law to facts, not feelings to facts.'

"Berkeley speech: 'We who judge must not deny the differences resulting from experiences and heritage but attempt ... continuously to judge when those opinions, sympathies, and prejudices are appropriate [emphasis added].'

"Testimony: 'I was talking about the very important goal of the justice system ... to ensure that the personal biases and prejudices of a judge [never] influence the outcome of a case.'"

See also my pre-confirmation hearing piece, "Judge Sotomayor's Record Should Be Scrutinized, Not Whitewashed or Ignored" (www.webcommentary.com/php/PrintArticle.php?id=gaynorm&date=090712):

"Kudos to Wall Street Journal's Naftali Bendavid for 'Sotomayor's Defense on "Wise Latina" Comment Takes Shape.'

"Mr. Bendavid: 'When Judge Sonia Sotomayor faces the Senate Judiciary Committee next week, she will finally get to explain before the cameras her comment that a "wise Latina" can often reach a better conclusion than a white man. That response could help determine whether her confirmation is smooth or rocky.'

"Mr. Bendavid's statement presumes confirmation, in accordance with the conventional wisdom.

"However, like President Obama's relationship to ACORN, scrutiny of Judge Sotomayor's record is both appropriate for patriotic Americans and anathema to the liberal media establishment.

"Whether or not the conventional wisdom is right this time, Judge Sotomayor's membership in the National Council of La Raza and her infamous comment – 'I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life' – should be scrutinized.

"Predictably, Judge Sotomayor's supporters insist that 'wise Latina' is not a symptom of a fundamental problem not to be knowingly tolerated in a United States Supreme Court Justice.

"For example, Senator Kirsten Gillibrand (D., N.Y.): 'I asked her that question...and she was very direct. She just said, "[Latina identity] is something that informs my experience, but I'm always going to look to judicial precedent, I'm always going to follow the rule of law."'

"The initial White House excuse for Judge Sotomayor's 'wise Latina' line – poor word choice – did not work, since Judge Sotomayor had repeated that statement many times.

"How plausible is the next excuse, that Judge Sotomayor is a person who will faithfully follow the law instead of make law to suit her personal political agenda?

"That videotape of Judge Sotomayor on how federal appellate judges really make law should give United States Senators pause.

"When Judge Sotomayor speaks candidly, she reveals herself as a believer in legislating from the bench.

"Moreover, the introduction by editors-in-chief Victor Rodriguez and Alegria De La Cruz, obviously Sotomayor admirers, to the issue of the La Raza Law Review in which Judge Sotomayor's 2001 'wise Latina' speech was published suggests that Judge Sotomayor's long-term goal has been to make law as a judge, not follow the rule of law.

"'In her comments to the symposium's audience, Judge Sotomayor discussed her many-faceted, multi-layered Latina identity, using food, music, and language to describe how her culture and her experiences as a Latina have impacted her role on the bench. Raising the prototypical American tension between "the melting pot and the salad bowl" that both attempts to celebrate and yet ignore racial and gender differences among our diverse population, Judge Sotomayor spoke to what it would mean to the American judicial system to have more women and people of color on the bench. Judge Sotomayor wondered whether we do a disservice both to law and society by ignoring our differences as women and men of color. She suggests that as a group, women and men of color can have a dramatic and beneficial effect on the development of law and on the profession of the judiciary.

"'Further developing Justice O'Connor's famous statement that a wise old man and a wise old woman will reach the same conclusion in deciding cases, Judge Sotomayor states that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white man who hasn't lived that life. She challenges all of us to begin our own evaluation as to what our identities mean in our lawyering, in our judging, and in our positions of power. In conclusion, Judge Sotomayor asks all of us to continue the struggle for racial and gender parity in our field – the fight is important for the attainment of statistically significant numbers so that we can measure the differences that our community will make and is making.'

"Is Judge Sotomayor a wise impartial judge dedicated to the rule of law or a passionate, partisan Latina who will use instead of follow the law when the opportunity arises?

"Senator Gillebrand's blithe acceptance of Judge Sotomayor's assurance that she is always going to look to judicial precedent and follow the rule of law is startling naive.

"Manuel Miranda of The Third Branch Conference commented that 'the whole race-bias issue' suggested by Judge Sotomayor's 'wise Latina' is 'explosive' and 'worthwhile.'

"It IS 'explosive.'

"It will be 'worthwhile,' IF it is properly pursued.

"New York's senior Senator, Democrat Charles Schumer, claims that Judge Sotomayor's judicial record shows no evidence of unfairness or favoring minority groups. Ask the white and Hispanic New Haven firefighters who passed a test for promotion only to have the test resulted ignored because no black firefighters passed.

"The record shows that Judge Sotomayor was part of a three-judge appellate panel that used a summary order to deny the appeal of the firefighters who had passed the test.

"Not only did those judges decide the appeal wrongly, they added insult to injury by the way they decided the appeal.

"As Judge Jose Cabranes (a Latino!) explained in a scathing dissent on a petition for reargument that ultimately led to reversal in the United States Supreme Court (with all nine Justices agreeing that Judge Sotomayor had not used the proper judicial standard), despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel's 'perfunctory disposition' oddly contained 'no reference whatsoever to the constitutional claims at the core of this case.'

"It's NOT odd that La Raza and ACORN are eager to have Judge Sotomayor confirmed and her supporters are racing toward confirmation as fast as possible.

"Why aren't the Senators scrutinizing the minutes of the National Council of La Raza during all the years that Judge Sotomayor was both a federal judge and a Council board member?"

Eventually Justice Sotomayor was confirmed as "a first" under President Obama, and now you are being told to apologize to Judge Curiel for "textbook racism."

What pernicious nonsense!

If upon reexamination you decide any of his rulings were fair after all, then announce that you have changed your view.

BUT...there's no reason to apologize for peacefully protesting perceived unfairness or pursuing the possibility that a judge is either actually biased or appears to biased.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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