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Mr. Trump, You Clearly Have No Idea What ‘Judicial Bias’ Really Means


TrumpUWhen it comes to the functioning of the American legal system, topics can be divided into two categories: those about which Donald Trump doesn’t know and those about which he doesn’t care. The judicial bias thing appears to fall into both.

Last week, Trump made quite the show of accusing Federal Judge Gonzalo Curiel of judicial bias in one the Trump University cases. Over the weekend, Trump continued to defend his outlandish comments, and even broadened them, opining that a Muslim judge “could absolutely” be similarly biased against him because of his anti-Muslim proposals.

Trump’s asinine and inflammatory statements often mischaracterize both facts and law. His construal of judicial bias is simply the latest move in what appears to be a full-scale assault on the concept of accuracy. Of course, Trump supporters will likely conduct no more legal research on the rules regarding judicial bias than they will on similar Trumpsurdities (his wall, his immigration ban, his budget, just to name a few). But hey, we can try.

Judicial bias is an actual thing, and there’s an entire body of law governing it. The right of any litigant in federal court to appear before an impartial and unbiased magistrate is governed by 28 U.S.C. § 455. The statute lays out a number of grounds for disqualifying a judge, most of which relate to the judge’s having been personally involved in the pending case, or to the judge’s having a financial interest in the outcome of the case. The statute also puts forth two grounds for disqualification based on a judge’s feelings toward the parties: 1) actual personal bias or prejudice about one of the parties; or 2) the reasonable appearance of lack of impartiality.

Actual Personal Bias

Trump has accused Judge Curiel of being biased not because of any personal connection the judge had to this litigation; rather, because as a Mexican-American, Judge Curiel would be sure to dislike Trump (presumably, based on Trump’s many anti-Mexican statements including his desire to build a wall). How Trump’s assumption of Judge Curiel’s bias could exist in the same logical universe as Trump’s constant declarations that Latinos love him is just another mystery.

But even if Trump were correct in assuming that Judge Curiel disagrees with his policies, that’s just not what “bias” means. Like everyone else, judges have ethnicities, religions, political and moral beliefs, and personal histories. There is no question that who a judge is informs what that judge does. That’s called “point of view” and those who responsibly appoint judges do so in a manner that will promote diversity of perspective on the bench. “Point of view,” though is not the same thing as “bias.”

“Judicial bias” refers to a judge’s inability to remain neutral based on personal favoritism of a party or a party’s lawyer. Judges all swear an oath to uphold the law irrespective of their personal beliefs; the charge of bias, therefore, is an accusation that goes to the heart of judicial misconduct.

Some typical examples of the proper interpretation of judicial bias arose in the high-profile Florida trial of George Zimmerman. The first judge, Justice Jessica Recksiedler, recused herself after learning that her husband worked with an attorney Zimmerman’s family had considered hiring. Later, Justice Kenneth Lester, was ordered off the case when a panel of judges ruled that Lester had made “gratuitous, disparaging remarks” about Zimmerman during the bond hearing. The kind of bias at issue in the Zimmerman case is characteristic of the kind that would warrant judicial disqualification in that was personal and specific, and originated outside the courtroom.

But Trump hasn’t alleged any personal reason for Judge Curiel’s bias; instead, he is using “bias” as a prophylactic catch-all excuse for what will likely be deemed Trump’s own wrongdoing. Trump’s statements about Muslim judges underscores such a maneuver, as he continues to lay the groundwork for a position that anyone who may disagree with him is, therefore, biased.

The Appearance of Partiality

Could Trump be referring to the more general part of U.S.C. § 455, in which Judge Curiel’s  impartiality “might reasonably be questioned”?

No. If we’re going with “this judge might actually be fair, but this looks shady, so we need to get him off the case,” the law requires that a judge’s partiality be questioned from the perspective of a reasonable person. In other words, a person who is informed of all the surrounding facts and circumstances would need to believe that Judge Curiel could not properly execute his function as impartial magistrate.

It is logically impossible to conclude that the mere fact of a judge’s heritage would create the reasonable appearance of partiality. Such a conclusion would mean that every member of our judiciary is unqualified to adjudicate fairly – and would render the judicial oath to impartially administer justice completely meaningless.  Oh, and there’s also the small matter of relating religion to qualification to serve as a judge being unconstitutional:

“…but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

-Article VI of the Constitution:

Even if there were some way Trump could twist his accusations to conform with legal requirements, what he is trying to do still won’t work. Attempting to use a judge’s ethnicity as evidence of bias is not only wrong and illogical, but it’s also prohibited. Trump might want to look into the 1998 case Macdraw Inc. v. CIT Equipment Financing, in which the Second Circuit affirmed Judge Denny Chin’s order that attorneys be sanctioned for attempting to have him removed from the case on the basis of his ethnicity. And I don’t mean pay-a-small-fine kind of sanctions. The lawyers were required to withdraw as counsel from the case, were banned from ever appearing in Chin’s court again, and were forced to show his opinion slamming their behavior to every other judge in the circuit. Plus, their misconduct was reported to every jurisdiction in which they were licensed to practice.

In a decision that presciently calls out the kind of nonsense Trump is spewing here, the Second Circuit upheld the sanctions and wrote:

“A suggestion that a judge cannot administer the law fairly because of the judge’s racial and ethnic heritage is extremely serious and should not be made without a factual foundation going well beyond the judge’s membership in a particular racial or ethnic group. Such an accusation is a charge that the judge is racially or ethnically biased and is violating the judge’s oath of office.”

So that’s pretty clear.

Trump knows all this. He has a sister who has been a federal judge since 1983. He knows how the system works and he knows that like his sister, Gonzalo Curiel took an oath to put aside personal predisposition and faithfully and impartially adjudicate matters before him. And of course, Trump’s lawyers know this, which is why they haven’t filed a motion asking Judge Curiel to recuse himself. In fact, if Trump’s lawyers actually thought there were credible evidence of judicial bias, they’d be under an obligation to file such a motion, or risk committing professional malpractice.

The bias claim is not a strategy for the Trump University litigation – it’s a strategy for damage control. Trump knows his supporters will never read up on judicial ethics, and that they love his ad hominem attacks on everyone from Megyn Kelly to Gonzalo Curiel. Trump may lose the Trump University lawsuit – and he needs an excuse upon which he can hang that loss, or he will risk his supporters noticing that he could have defrauded innocent citizens.

The true danger of Trump has less to do with the decisions Trump himself makes, and more to do with the effect he has on his supporters. Trump’s erroneous rhetoric, presented as legal argument, has potential to cause a mass erosion of American government and legal principles. Millions of Americans form their legal knowledge base from an amalgam of fiction, media, and politics. When Trump’s loud-but-wrong version of “judicial bias” is the one making headlines, the average American will begin to believe that ethnicity alone can actually amount to bias.

In other words, blaming the judge is so stupid that it may just work.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos