"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, June 8, 2016

Talking heads thumping Trump for criticizing Judge Curiel are in denial of existing law and practices in American courts

For years, the media avoided like plague the issue of judicial impropriety and bias.

For the last couple of days, the talking heads on TV and the media discuss nothing else.

Because it is safe to do so now - because thinking is not required to just say: to accuse a judge of appearance of impropriety is:

1) racist;
2) unamerican;
3) makes the accuser unfit to be a president.

Of course, it is not just the race of Judge Gonzalo Curiel that drove Donald Trump to raise the appearance of impropriety in Judge Curiel presiding over the case of Trump University and repeatedly ruling against Trump University.

It is what is called the "totality of circumstances" including:

1) the heritage of Judge Curiel - his parents were both Mexican immigrants, and,  with all the frenzy in the media, I did not see any efforts to uncover and produce documents indicating that Judge Curiel's parents entry into this country was legal;

With the amount of money thrown into this media frenzy, to rely upon statements of Judge Curiel's brother Raul that his parents entered the country legally is irresponsible journalism.

Trump is right to raise the issue that a large part of Trump's election campaign is to build a wall and prevent further illegal immigration from Mexico.

It is nonsense to say that a judge would not feel for his immigrant parents (now deceased) and would not try to use his position of power to hurt a critic (fair or unfair) of his heritage - and it is especially so when the judge is honored in supporting the "community" which honors as its part organizations of illegal immigrants.

I wrote on this blog about a lot of different motives for judges to act as advocates and not as impartial tribunals.

The triggers range from being an athlete (like the defendant), a churchgoer (while the defendant went to the same church choir), and most definitely, the race.

The media accuses Trump of being a "racist", "unamerican" for "assaults on a judge".

There was no physical assault.

There was criticism.

Can a party in litigation raise the appearance of impropriety?


And, are there legal standards in this country indicating that NOT taking into account the race of the factfinder is a violation of the litigant's due process of law?

Sure.  The media conveniently forgets about that.

On May 23, 2016, the U.S. Supreme Court overturned a death sentence because it was meted out to a black defendant by an all-white jury - in 1987, that is 30 years ago:

"The State’s new argument today does not dissuade us
from the conclusion that its prosecutors were motivated in
substantial part by race when they struck Garrett and
Hood from the jury 30 years ago. Two peremptory strikes
on the basis of race are two more than the Constitution

The order of the Georgia Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion." 

In other words, the U.S. Supreme Court, in 2016, overturned a death sentence - that a judge allowed - which was motivated by race of the fact-finders.

Which means, race of the fact-finders matters.

Very much so.

Why do we actually strive for "judicial diversity"?

Why do we want more judges of color on the bench?

The U.S. Supreme Court Justice Sonya Sotomayor answered that question:

In 2001, Sonia Sotomayor, then an appeals court judge, "gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”"

Sonya Sotomayor was recently in the middle of a controversy with her other statement - to force lawyers to provide free services for the poor as a condition of having a law license.

That statement of Sonya Sotomayor was vigorously discussed in the press.

The 2001 - on point - statement of Sonya Sotomayor that the ethnicity and sex of a judge "may and will make a difference in our judging" is all but forgotten, and Trump is jumped upon - for saying the same.

That the ethnicity of a judge does matter and, in his case, does raise an appearance of impropriety.

Sonya Sotomayor, in her famous speech, rejected the notion that it does not matter that the decision is made by a white or non-white judge, by a man or woman (which is how it should be).

Sonya Sotomayor, who was since PROMOTED to the U.S. Supreme Court, thinks otherwise:

"In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

“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.”

That's EXACTLY what Trump doesn't want in a judge in his case.

A "wise Latino man" who would draw from and based his decisions not upon the record and the law, but upon the "richness of his experience" - and from the "richness of experience" of his Mexican immigrant parents, now both deceased, and thus even more honored by the judge.

In other words, Trump wanted to exclude a possibility of Judge Curiel making a decision in  his case based on extra-judicial factors - which is EXACTLY what the "wise Latina woman" Sonya Sotomayor was calling upon judges to do since 2001.

2) Affiliations of Judge Curiel with advocacy organizations for illegal immigrants

It was discussed in the media ad nauseam whether Judge Curiel's participation in a lawyers' group which itself is affiliated with the nationalist La Raza movement raises an appearance of impropriety.

From the point of view of ensuring a right to a fair trial for Trump University - where its founder has pledged to fight illegal immigration from Mexico, and made offensive statements against Mexican immigrants equating them with criminals - Trump has a point, and that is especially given the speech of Sonya Sotomayor and her "wise Latina woman" drawing upon her experiences as opposed a white man who "didn't live that life".

Trump also has a point where Judge Curiel:

That would give any litigant enough pause and a basis to make a motion to recuse judge Curiel.

The reason why Trump's lawyers do not make such a motion is not because it is not merited, but because the current climate of sanctions against attorneys who make motions to recuse, and the media frenzy around the case intimidated the lawyers into considering their own interests (in not being sanctioned and not losing other business and not to be boycotted) over and above the interests of their client.

3) What would also give me pause is the answers of Judge Curiel at his confirmation hearing before the U.S. Congress.

In his answer to questions ## 6 and 8 below (which was pre-prepared by Judge Curiel), Judge Curiel put precedents of the U.S. Supreme Court and federal appellate court, even erroneous (unconstitutional?) precedents, above the U.S. Constitution - while such precedents are NOT part of the Supremacy Clause, DO NOT trump the U.S. Constitution, and ARE NOT binding upon any court if they are made in violation of the U.S. Constitution.

I received recently an e-mail from an individual in some advocacy group appealing to members of the e-mail list to distance from Trump and not to discuss the issue whether there is or there is no appearance of impropriety in Judge Curiel presiding over the class lawsuit against the Trump University.

The e-mail was pointing out that it is the wrong person and the wrong situation where the appearance of impropriety should be raised, in other words, not a "perfect showcase".

I disagree.

The media's silence - in general - on the issues of judicial misconduct, bias, and impropriety, of judges of all races and genders - and the media's frenzy once a prominent, and much hated (deservedly on many points), presidential candidate raises this issue, and the way the public responds, after being heated up by the cues from the mass media, actually warrants and even mandates a response from those of use who see what is really going on.

It is not inappropriate to raise ANY issues raising the appearance of impropriety.

The right of access to court, the right to an impartial judge, the right to a fair trial are all fundamental constitutional rights, guaranteed by the 1st, 5th and 14th Amendment.

The right to criticize a member of the government - any member, including a judge - is a fundamental constitutional right, guaranteed by the 1st Amendment to any one of us, including a presidential candidate, no matter how he is hated by some people, and no matter whether that hate is deserved or not.

A Latino U.S. Supreme Court Justice Sonya Sotomayor endorsed judicial decision-making influenced by race and gender of the judge, and drawing on the judge's background and experiences outside of the record.

I do not see the media talking heads criticizing her.

The pleading standards in federal court - the infamous Iqbal and Twombly cases - allow judges to draw upon their own extrajudicial experiences.

Once again, Judge Curiel is allowed by the U.S. Supreme Court precedent - which he pledged to follow at his confirmation hearing, whether it is erroneous (unconstitutional) or not - to draw on his own personal experiences in deciding court cases.

I do not see the media criticizing or even mentioning Iqbal and Twombly cases.

I only see the media in a frenzy DENYING that Judge Curiel would do what the precedents allow him to do.

And I only see the media eating alive Donald Trump for saying that doing what Sonya Sotomayor claimed a judge must be doing, and what the U.S. Supreme Court in Iqbal and Twombly allowed judges to do - drawing upon their own personal experiences in deciding cases - which is what Trump discerned in Judge Curiel's decisions - was wrong.

It is wrong.

Let's sum it up.

1) Race matters in court decision-making, as ruled in:

Batson v Kentucky, 476 U.S. 79 (1986);
Foster v Chatman, (May 23, 2016)

2) Drawing upon a judge's personal experiences related to his racial heritage should be done as part of judicial decision-making - according to the U.S. Supreme Court justice, a "wise Latina woman" Sonya Sotomayor.

3) Drawing upon a judge's personal experience in deciding federal cases is allowed at the pleading stage, for purposes of deciding a motion to dismiss before reviewing any evidence in the case - by a U.S. Supreme Court case 

Ashcroft v. Iqbal, 556 U.S. 662 (2009):

"whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and common sense" - see criticism of that decision here and here.

In 2010 there was an empirical study conducted of decisions made by judges of different races.

The article describing the study actually indicated that racial diversity in the judiciary is important because:

"[i]t is essential that judges have an ability to relate to a rapidly growing diverse culture and the experiences of minorities vulnerable to White people in positions of power within industries predominantly controlled by Whites."

A judge's "ability to relate", or empathy to a certain class of litigants, is called "bias".

A judge should be even-handed, impartial and should correctly and fairly apply the existing law, based on the record of the case - that's all the judge has to do.

If in any judicial confirmation hearings, a judge would be tested for his or her "ability to relate" to various classes of litigants - there will be a media frenzy of another kind, condemning the judicial candidate for seeking his judicial seat to promote interests of a certain class of litigants to which the judge "relates".

The existing law, the existing studies, statements of a presently sitting U.S. Supreme Court Justice clearly indicates that race matters in judicial decision-making.

Many litigants, mostly pro se (because attorneys are afraid to raise the issue) are raising the issue - in pleadings and in social media - that judges make decisions in favor of people with backgrounds similar to the judge, including ethnicity, religion, church, cultural values etc.

But, when such an issue is uttered by a presidential candidate - the media immediately calls him racist, and political capital is made on bashing him.

Based on the facts at his disposal, and existing laws and practices as described above, Trump had every right to raise the issue of appearance of impropriety in Judge Curiel presiding over his case and repeatedly ruling against his institution.

The taint is not removed by claims that Judge Curiel's decisions are supported by evidence.

For purposes of fairness of adjudication, appearance of bias and impropriety is as important as the actual bias and impropriety.

And, if the media really wanted to protect a judge from racist attacks - the media should protect the recently suspended Judge Olu Stevens of Kentucky - a black judge who was suspended by a racist judicial system for insisting that the anti-racist law, Batson v Kentucky, is followed in the racist criminal justice proceedings.

The black judge Judge Olu Stevens actually called out a white prosecutor for being a racist.

And was suspended for his efforts to enforce the anti-discrimination law.

I don't see any media frenzy defending Judge Olu Stevens though.

A judge has no claim for racial discrimination where he is in a position of power to decide a case of a litigant, is allowed to draw upon his personal experience to make such a decision, and where the top judges in the country encourage judicial decision-making based on the judge's racial heritage.

Don't fall into the trap of bashing Trump on this issue.

It is not un-American to question impartiality of a judge.

It is not un-American to try to secure a fair trial for yourself, by statements in court and out of court.

It is not un-American to criticize a judge in a public forum, including for decisions based on the judge's racial heritage.

I will never forget how a black client, an Army Veteran who went through combat where his country has sent him,  a man with no criminal record, told me about civil court proceedings in front of white judges - "they are not ready to see the likes of us without shackles".

That was not in the Bible Belt states.  That was in the State of New York.

Race in judicial decision-making matters.

To deny it is to deny the obvious.

If there can be prejudiced decisions by a white judge against a black litigant, there can be prejudiced decisions by a judge of any race against a representative of another race.

How to fight ethnic-based bias in judicial decision-making?

On a case by case basis.

Like Trump is doing.

To support Trump-bashing at this time, when he had every right to raise the issues he is raising, is to deny yourself in the future a possibility to raise issues of judicial impartiality and appearance of impropriety in court proceedings, and I am talking about litigants of any racial and ethnic background.

You have a right to a fair trial.

You have a right to a judge who is, at the very least, not an advocate for a group you are criticizing or whose access to the U.S. you are trying to restrict, and especially not an advocate because of blood ties.

You know the saying - "blood is thicker than water".

It is.

In racial and ethnic issues, too, and judges are human.

When a litigant feels he is treated unfairly and may be the victim of an ethnic-based judicial bias, he must be able to raise that issue.

It is a legitimate issue ensuring access to court and the right to impartial judicial review and fair trial to all of us.

Don't sell yourself out, don't fall into the traps of the talking heads.

They have money to make - as well as politicians who condemn Trump for "judge-bashing" to make political capital out of it.

On our backs.

And, before continuing to bash Trump, please, consider reading these law review articles:

Cornell Law Review, 2009 - "Does unconscious racial bias affect trial judges?" 

An article claiming that judges stereotype - and make their decisions - based on judge's own race and race of litigants in front of them.

This article, measuring sentences by white judges against white and minority defendants.  If a white judge on minority defendant bias exists, a minority judge on white defendant bias may exist, too - don't you think?

Yet another study on race-based judicial bias claims that "[s]ince African American judges have likely experienced discrimination themselves, they can recognize more complex and subtle forms of racial harassment".

If you are in a jury pool, and you have "likely experienced" the type of crime you are judging - you will be taken off the case, because there is a high likelihood you will act as an advocate.

Judge Curiel - let's remember that - was raised in poverty, by two laborer Mexican immigrant parents who both died young, likely because of their hard labor past.

And finally, there are many judges in the district court where Judge Curiel "serves".

Once again, Judge Gonzalo Curiel was picked to be assigned to 2 out of 3 lawsuits against the Trump University, out of 16 available judges:

  1. Cynthia Bashant - white Non-Hispanic female, no evidence of immigrant parents;
  2. Anthony J. Battaglia - white non-Hispanic male, no evidence of immigrant parents;
  3. Cathy Ann Bencivengo (nee Palumbo) - a white female, possibly Hispanic, no evidence of immigrant parents;
  4. Roger T. Benitez - Hispanic, immigrant, born in Havana, Cuba;
  5. Larry Alan Burns - white male, U.S.-born, no evidence of immigrant parents;
  6. Gonzalo P. Curiel - Hispanic, born to Mexican immigrant parents;
  7. William B. Enright (born 1925, 91 years old) - a white Non-Hispanic male, no evidence of immigrant parents;
  8. William Q. Hayes - white non-Hispanic male, no evidence of immigrant parents;
  9. John A. Houston - African American, no evidence of immigrant parents;
  10. Marylin L. Huff - white non-Hispanic female, no evidence of immigrant parents;
  11. M. James Lorenz - white non-Hispanic male, no evidence of immigrant parents;
  12. Jeffrey T. Miller - white non-Hispanic male, no evidence of immigrant parents;
  13. Barry Ted Moskowitz - white non-Hispanic male, no evidence of immigrant parents;
  14. Dana M. Sabraw - a male judge, has a Japanese immigrant mother
  15. Janis L. Sammartino - white female, no evidence of immigrant parents
  16. Thomas J. Whelan - white male, no evidence of immigrant parents

The state of California where the court sits has the following demographic composition:

According to 2014 US Census Bureau estimates, California's population was:

  • 73.2% White, 
  • 6.5% Black or African American, 
  • 14.4% Asian, 
  • 1.7% American Indian, 
  • 0.5% Pacific Islander and 
  • 3.7% from two or more races. 

By ethnicity, 
  • 38.6% of the total population is Hispanic-Latino (of any race) and 
  • 61.4% Non-Hispanic (of any race).[11]

Ok, so the population is more than 1/3 Hispanic.

Out of 16 judges of the court - 2, possibly 3 Hispanic judges, that is 12 to 19%.

Once again - there are 38.6% of Hispanic people in population, and 12 to 19% (I am not sure about Judge Bencivengo/Palumbo).

That is less than 1/3 of the proportion of Hispanics in the population.

There are 14.4% Asians in California's population.

There is 1 (one) judge who is half-Japanese in the court.  That is 6% of the court, more than 2 times less than the proportion of Asians in the population.

There are 6.5% of African Americans in the California population - and there is only one African American judge, about the same as proportion of the population (the question is though why the African American population is so scarce, twice less than the average in the U.S. - is California actively discriminating and preventing African Americans from settling in?).

Four females out of 16 judges, too.

So, the court where Judge Curiel serves was composed as a mysoginistic white male-dominated body.

There are only 2 (possibly, 3) Hispanic judges on that body.

There are only 3 judges who have any personal experience with immigration - one judge was born in Havana, Cuba, one judge has a Japanese immigrant mother, and the third judge, Judge Curiel, has two Mexican immigrant parents.

Judge Curiel is the ONLY judge out of 16 judges who has Mexican immigrant parents.

Trump is fighting illegal immigration, specifically out of Mexico.

Is it a coincidence that out of the body that was composed in such a way that it is dominated by white male judges (it is not Trump who made up that court that way), the judge assigned to him is the ONLY judge with Mexican immigrant parents?

Don't talk racism.

Talk common sense.

Judge Curiel was picked for this case for a reason.  And he is doing his "job" well.

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