Alberto Gonzales and Wendy Long dare to back judicial impartiality for Donald Trump

By Michael Gaynor

Bottom line: Trump deserves judicial impartiality, Gonzales deserves great credit for defending basic fairness for litigants, and Long deserves great credit for pointing out pertinent evidence of partiality that The New York Times did not find "fit to print."

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Pillorying presumptive Republican presidential nominee Donald Trump for demanding fairness from a federal judge of Mexican ancestry is in vogue now, but some who dared to stand up for judicial impartiality in both reality and appearance, like former White House Counsel and United States Attorney General under President George W. Bush Alberto Gonzales and former law clerk to Justice Clarence Thomas and current United States Senate candidate in New York Wendy Long.

Gonzales deserves great credit for scrutinizing the facts and the law pertaining to judicial fairness in the pending class action against Trump University, and Long deserves it for pointing out a pertinent fact that The New York Times did not find "fit to print."

No good deed goes unpunished, and even Gonzales's Mexican heritage did not protect him from pathetic assaults for saying that Trump may have good reason to question the impartiality of Judge Gonzalo Curiel, also of Mexican heritage.

It is well established that a federal judge should recuse himself or herself in case of an appearance of partiality.

A party can move to have a judge recuse himself, but it should not ne necessary to do so if there is actual partiality, apparent impartiality, or both. Where there is a legitimate question as to partiality, it is best for a judge himself or herself, and for confidence in the judicial system generally, that the judge recuse himself or herself voluntarily instead of makes the partiality of himself or herself an issue.

The Judicial Disqualification Resource Center explains why, as follows (www.judicialrecusal.com/bias-appearance-bias/):

"The right to be tried by an impartial judge is deeply embedded in American jurisprudence; in fact, this right has often been considered to be the 'cornerstone' of the American legal system. Litigants and their counsel often come to believe that a judge has become biased or prejudiced against them, or in favor of an opposing party; however, bias is an attitude or 'state of mind,' not an easily provable 'fact.'"

Gonzales recently dared to write in a Washington Post op-ed (www.washingtonpost.com/posteverything/wp/2016/06/04/alberto-r-gonzales-trump-has-a-right-to-question-whether-hes-getting-a-fair-trial/):

"Donald Trump suggested this week that U.S. District Court Judge Gonzalo Curiel can't give him a fair hearing. Curiel...is a U.S. citizen, born in Indiana to Mexican immigrants. 'I'm building a wall' on the U.S.-Mexico border if elected, the presumptive Republican nominee for president told the Wall Street Journal on Thursday. 'It's an inherent conflict of interest.' Earlier in the week, he told a crowd at a rally in San Diego that Curiel was 'a hater of Donald Trump, a hater.'

"As a private citizen, Trump has a right to his opinions, regardless of whether others agree with them, or whether others consider them wise, foolish or even dangerous. Trump, of course, is more than a private citizen; as the likely nominee for president of a major political party, he speaks with a voice that carries much weight and, if successful in November, will influence millions of people. Because of this, some commentators have condemned Trump's suggestion that Curiel step down from the case. These voices have, quite rightly, emphasized the importance of upholding our independent judiciary from baseless attacks by high-level persons from other branches of government.

"An independent judiciary is extremely important. But that value is not the only one in play here. Equally important, if not more important from my perspective as a former judge and U.S. attorney general, is a litigant's right to a fair trial. The protection of that right is a primary reason why our Constitution provides for an independent judiciary. If judges and the trials over which they preside are not perceived as being impartial, the public will quickly lose confidence in the rule of law upon which our nation is based. For this reason, ethics codes for judges – including the federal code of conduct governing Curiel – require not only that judges actually be impartial, but that they avoid even the 'appearance of impropriety.' That appearance typically is measured from the standpoint of a reasonable litigant."

Gonzales is right: the mere appearance of impropriety is sufficient for recusal or disqualification.

Furthermore, to date Trump has not been part of any branch of government, much less a "high-level person" from a branch of government.

Gonzales continued:

"It is crucial to understand the real issue in this matter. I am not judging whether Curiel is actually biased against Trump. Only he knows the answer to that question. I am not saying that I would be concerned about him presiding over a case in which I was a litigant. And if I were a litigant who was concerned about the judge's impartiality, I certainly would not deal with it in a public manner as Trump has, because it demeans the integrity of the judicial office and thus potentially undermines the independence of the judiciary, especially coming from a man who could be president by this time next year. But none of these issues is the test. The test is whether there is an 'appearance of impropriety' under the facts as they reasonably appear to a litigant in Trump's position."

Exactly!

Trump seems to have great legal instincts, but he is not a lawyer and not a former judge like Gonzales.

A lawyer like Gonzales would have chosen to raise the issue of appearance of partiality instead of claiming actual partiality, but Trump is running for President and not used to making "nice" legal arguments.

Fortunately for Trump, Long, who will be on the ballot with Trump In New York as the United States Senate candidate of the Republican, Conservative and Reform Parties and became a Trump supporter long before the Iowa caucuses, tweeted pertinent evidence of the appearance of partiality that Trump had not noted (www.twitter.com/wendylongny).

The New York Times reported that Judge Curiel is a member of the California La Raza Lawyers Association in an article assuring readers that Judge Curiel would be fair to Trump (www.nytimes.com/2016/06/04/us/politics/donald-trump-university-judge-gonzalo-curiel.html?_r=1).

Tellingly, The New York Times omitted to report that Judge Curiel is not only also a member of the San Diego La Raza Lawyers Association, but a member of its 2014 Scholarship Selection Committee.

Long tweeted the Committee's official announcement of the 2014 scholarship recipients, one of whom described himself as "a boy from Oaxaca, who did not know English and is undocumented" envisioning that he had "graduated from law school" and become "an attorney."

There is no reasonable dispute that a key plank in Trump's campaign platform is that the United States must enforce its borders and that a wall will be built on the border between the United States and Mexico and "Mexico will pay for the wall."

It is equally undisputed that many Mexico has not embraced Trump's plan and many United States citizens and undocumented aliens of Mexican heritage adamantly oppose Trump's plan.

Would a judge who was born in the United States to parents who were born in Mexico be biased against Trump?

Certainly not necessarily.

But that is NOT the relevant question.

The question is whether Judge Curiel, who was appointed by President Obama and apparently knowingly joined in awarding a scholarship to an "undocumented" Mexican, appears to be impartial toward Trump.

Gonzales opined:

"Certainly, Curiel's Mexican heritage alone would not be enough to raise a question of bias (for all we know, the judge supports Trump's pledge to better secure our borders and enforce the rule of law). As someone whose own ancestors came to the United States from Mexico, I know ethnicity alone cannot pose a conflict of interest.

"But there may be other factors to consider in determining whether Trump's concerns about getting an impartial trial are reasonable.... Trump may be concerned that the lawyers' association or its members represent or support the other advocacy organization. Coupled with that question is the fact that in 2014, when he certified the class-action lawsuit against Trump, Curiel appointed the Robbins Geller law firm to represent plaintiffs. Robbins Geller has paid $675,000 in speaking fees since 2009 to Trump's likely opponent, Hillary Clinton, and to her husband, former president Bill Clinton. Curiel appointed the firm in the case before Trump entered the presidential race, but again, it might not be unreasonable for a defendant in Trump's position to wonder who Curiel favors in the presidential election. These circumstances, while not necessarily conclusive, at least raise a legitimate question to be considered. Regardless of the way Trump has gone about raising his concerns over whether he's getting a fair trial, none of us should dismiss those concerns out of hand without carefully examining how a defendant in his position might perceive them – and we certainly should not dismiss them for partisan political reasons."

Amen!

But Gonzales's op-ed brought condemnation down upon him.

For example, this venomous response from Professor Jonathan H. Adler (www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/05/a-response-to-alberto-gonzales-on-donald-trump-and-judge-gonzalo-curiel/):

"Donald Trump's deplorable comments about the judge presiding over a Trump University lawsuit have drawn substantial comment, including from my co-bloggers Eugene Volokh and David Post. Few have sought to defend Trump's suggestion that Judge Gonzalo Curiel's Mexican heritage portends a conflict of interest or that the judge has otherwise demonstrated a lack of impartiality of the sort that would justify recusal. (Note, on this point, that there is no indication that Trump's lawyers have sought Curiel's recusal for alleged partiality.)

"Last week, however, former attorney general (and Texas Supreme Court justice) Alberto Gonzales rose to Trump's defense. While acknowledging that 'Curiel's Mexican heritage alone would not be enough to raise a question of bias,' Gonzales nonetheless suggested there may be other reasons for Trump to have reasonable concerns about Curiel's impartiality.

"My Case Western colleague Cassandra Robertson found the Gonzales op-ed to be quite lacking (and with good reason). 'While I don't expect Donald Trump to be a legal scholar, I do expect Alberto Gonzales – a former Texas Supreme Court justice, former U.S. Attorney General, and now Dean at Belmont Law School – to know better,' she wrote. Dissecting Gonzales's claims, she found them 'no more reasonable than Trump's,' and concluded that 'his argument fails both on law and logic.'

"Most perniciously, Gonzales wrote that 'it might not be unreasonable for a defendant in Trump's position to wonder who Curiel favors in the presidential election,' suggesting that this would justify Trump's concern about potential bias. Robertson responds:

Of course a politician appearing before a judge will 'wonder' about whether the judge supports his or her campaign. But there is no right to appear only in front of judges who would vote for you. Taken to its logical conclusion, Gonzales' position would allow unfounded speculation about a judge's political leanings to give rise to a 'legitimate question' about his or her 'honesty, integrity, impartiality, temperament, or fitness to serve as a judge.' This is not only wrong as a matter of judicial ethics, but it undermines the very legal system Gonzales has spent his entire career serving.

"Indeed."

Hardly!

That diatribe is sheer nonsense.

Bottom line: Trump deserves judicial impartiality, Gonzales deserves great credit for defending basic fairness for litigants, and Long deserves great credit for pointing out pertinent evidence of partiality that The New York Times did not find "fit to print."

Judges are people, not gods, and anyone who cannot admit that a person with Judge Curiel's background might be biased against the blue collar billionaire who questioned the presidential eligibility of the person who appointed Judge Curiel to be a federal judge is blind to rubber stamping and kangaroo courts.

I don't know whether there is actual partiality and leave that to God, but I do believe that there is an appearance of partiality unless Judge Curiel really is oblivious to any difference in the positions of Trump and the Democrat presidential aspirants on the immigration issue generally and The Wall particularly – and I doubt that Judge Curiel is oblivious. Trump's case could have been stated more artfully – and would have been if Gonzales or Long had been speaking for him, but when Trump said that Judge Curiel is Mexican, he was referring to Judge Curiel's heritage, not his citizenship, and Judge Curiel has made no secret of his pride in his Mexican heritage and reasonably could be perceived as perceiving Trump as a threat to it.

© Michael Gaynor