Monday, June 6, 2016

Trump is “Yugely” Wrong in His Attack on Judges

By Professor Laurie L. Levenson

Donald Trump crossed the line when he attacked Judge Gonzalo Curiel as a “Mexican” who could not be fair in his case. Put aside that Judge Curiel was born in Indiana. Put aside that Judge Curiel is a well-respected jurist who has dedicated his career to public service. Put aside that Judge Curiel has done nothing to deserve Trump’s invective. Trump crossed the line by suggesting Judge Curiel has done anything other than completely comply with the ethical standard for judges.

First, there is nothing in the Code of Conduct for U.S. Judges that disqualifies a judge because some litigant has had the audacity to make offensive public comments about the judge’s ethnicity. That rule makes sense. Otherwise, litigants could shop for judges simply by making unfounded accusations against the judge assigned to their case. To the contrary, the rules support the independence of judges by not having them recuse themselves unless they have a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Canon 3(C)(1)(a). There is no indication that Judge Curiel has a personal bias requiring him to disqualify himself. Moreover, Trump has never even made a motion to recuse the judge.

Second, Judge Curiel has always acted appropriately in Trump’s case. Nothing shows that his “honesty, integrity, impartiality, temperament or fitness to serve as a judge [has been] impaired.” Canon 2(A). In fact, the judge went out of his way to allow Trump to focus on his campaign rather than defend his case before the election.

Finally, Trump is picking on a target who cannot readily defend himself. Under Canon 3(A)(6), Judge Curiel cannot make comments about a pending case. Trump took a sucker punch at a person he knows is ethically barred from responding to his outrageous claims.

Overall, Judge Curiel should be praised for the ethical and responsible manner in which he has handled this recent controversy. Trump, on the other hand, should read the Code of Ethics.

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