This column has carefully avoided the ongoing presidential campaign, chiefly because, from this writer’s perspective, it has been much in the way of heat, and little in the way of light. Something interesting has come up, however, and might be worth a closer look. So let’s consider the controversy about Donald Trump, the lawsuit in federal court against his Trump University, and particularly Trump’s anxiety about the judge presiding.
One enters into this kind of discussion fully aware of the likely misinterpretation that will follow. But that’s the risk that often goes with striving for the truth of a matter, especially when set against the background of a presidential campaign, and the current dysfunction of politics in general. Politics, campaigns and the personalities that go with them, however, are totally irrelevant to the point to be made here. But I digress.
Trump contends that this judge, an Indiana native of Mexican ancestry, cannot be fair. Trump argues that this judge has already been repeatedly unfair to him in the course of the case thus far. The judge has not replied to this charge, lodged in the public arena, nor should he. Research does not disclose whether the correct procedure to further Trump’s claim has been made in the courtroom. That procedure would be simple, in the form of either a paper or oral motion in court by Trump’s attorney, calling on the judge to “recuse” himself, and laying out the grounds for such an application. Then in court the judge would reply, as he should, and either stay on the case or withdraw.
So in Trump’s often overbearing manner, he just left it out there. No reply from the judge has occurred. Courtesy of the news media, we have been corralled like sheep to view this controversy strictly through the prism of racism. And any attempt to examine this more carefully risks dismissal as simply a defense of Trump. Such is definitely not the case. At question is the integrity of the courts, by far more important than both Trump and the judge.
Trump in this instance is merely a catalyst for presenting to us a deeper issue than most of us have been able to see. That issue is the constant, irreversible, supreme standard of fairness in our courts, all of our courts, from a village justice with a four-year term, to, as here, a U.S. District Court judge with a lifetime term. Any party to a case, be it man or woman of any age, of any ethnic, economic or educational background, no matter how guilty or innocent, in a criminal, or as here, civil case, has an a-b-s-o-l-u-t-e right to fairness from the court, its juries, and most certainly from the judge.
As a party to the Trump U. case, Trump is also a sensational figure, widely publicized for urging the building of a wall at the U.S. border with Mexico. Whether you embrace or oppose this position, it is still his very well-known position. As the judge in the Trump U. case, Gonzalo Curiel, for his part, is well known for his extra-judicial work for a Mexican-American advocacy group, San Diego La Raza. Judge Curiel enjoys an excellent reputation as a jurist, who has stood up courageously to the Mexican drug cartel in another case, earning death threats from that monstrous crew.
Suppose, for the sake of discussion, this hypothesis: a Mexican-American is sued in federal court. Suppose as a defendant, he is also a well-known activist in his community, leading efforts to aid immigrants, both legal and illegal, from Mexico. Suppose further, as a defendant in a civil case, he perceives, whether correctly or not, that the judge presiding in the case is handing down one preliminary decision after another that is totally unfair. Further, suppose this judge is of European descent, whose extra-judicial activities were to include membership in a pro-border control organization. Finally, suppose this defendant argued that as a Caucasian with this kind of activity, given the litany of what this defendant felt to be unfair decisions, this judge ought to step aside.
Clearly this contention as hypothetically described would never be condemned as racism, where further discussion, debate, or even thought simply shuts down. Rather media and public reaction would fall under the penumbra of sympathy for the underdog, not unlike the assumption that all-white juries may not be fair to a person of color who is a party to a case. Nor would the media throw loaded questions at others about their response to this racism, making headlines of their inevitable answers.
The appearance of impropriety – note the term “appearance” – is to be absolutely avoided among all judges just as impropriety itself. This can be found online in “Code of Conduct for United States Judges.” By this standard, it would have been wise, and preferable, for the judge in the Trump case to have anticipated this kind of imbroglio well before it flared up. This is not hairsplitting. Rather it is adhering to one of the rules governing judges which guarantees any court as the last forum in our land where all disputing parties are met with an unquestionably fair-minded tribunal.
The Trump University case was a powder keg before it started. Any judge assigned any kind of case, at the time it is assigned, has to evaluate at the outset whether there might be any question, any “appearance,” of a possible, even remotely possible, lack of fairness. Anticipating such questions is a judicial skill. Prudent remarks from a presidential candidate is a political skill. Both were absent here.
Greg Blass has spent his life in public service since he enlisted in the U.S. Navy as a teenager. He has worked in the private sector as an attorney and served six terms representing the East End in the Suffolk County Legislature, where he was also presiding officer. Greg has worked as an adjunct professor at Suffolk County Community College, as Greenport village attorney, as N.Y. State family court judge and as Suffolk County social services commissioner. Now retired, Greg is active in volunteer work and is a member of the board of directors of several charities. A resident of Jamesport, he and his wife Barbara have two grown children.
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