Trump vs. Judge Curiel: the non-case for recusal, cont’d

Sunday’s post quoted Eugene Volokh to the effect that on current evidence there is no case, not even close, for Judge Gonzalo Curiel to recuse himself in the Trump University litigation. Now Ken White at Popehat has a short explainer of the issues, noting, inter alia, that Trump can’t “earn” recusal by stepping up his attacks on Judge Curiel. Meanwhile, Alison Frankel at Reuters gives two reasons Trump’s lawyers won’t move for recusal. First, they need to worry about their reputation; second, there’s a real possibility they’d face sanctions if they did file such a motion, given precedents such as the Second Circuit’s 1998 opinion in MacDraw Inc v. CIT Group upholding sanctions issued by then-U.S. District Judge Denny Chin against lawyers who had moved for his recusal based on his Asian ancestry.

Meanwhile, a Legal NewsLine reports that Judge Curiel recently turned down a class action settlement over jeans labeling as providing too little relief to consumers as compared with lawyers and cy pres bystanders. Tweets Adam Schulman of the Center for Class Action Fairness: “Trump’s least favorite judge seems good on class actions to me.”


  • It’s amusing how the Left says out of one side of its mouth “how dare Donald Trump criticize a sitting judge” (see for example), yet the same people start a petition to remove a sitting judge because they didn’t like his sentencing on a case they didn’t hear or understand (see

  • Robert, you’re assuming people making the first statement are also making the second. Frankly, I don’t know anyone who is making the first statement–rather they are condemning him for publicly espousing the position that a particular judge cannot be trusted to do his job because his parents are from Mexico. If Trump had pulled out the rulings and pointed out legal errors or abuses of discretion, most people would view the story differently–not that it still wouldn’t cause people to question his judgment. Frankly, I know many people who are condemning Trump’s statements concerning Judge Curiel who have no opinion as to the propriety of the sentence in the Stanford case and certainly didn’t start a petition to remove the judge who imposed it.

    • Another factor is that people who are criticizing Judge Persky (and I have significant concerns with what’s happening there too) are doing so based on one of the Judge’s actual judicial acts, and they’re using the political process that’s been provided for the recall of Superior Court judges. That matter does raise reasonable concerns about the independence of the judiciary, or whether a single case none of us were in the courtroom for is a good benchmark to make sweeping conclusions about a judge, but that’s a very different situation from what’s happening with Judge Curiel. With Judge Persky, the community that put him in office now has concerns about his discretion and decision-making based on this sentence.

      With Judge Curiel, a litigant in an active case is attacking a sitting Federal Judge because of his ethnicity. Specifically, Trump is attacking him based on the following evidence: the judge’s ethnic heritage; who appointed him; and the fact that he’s ruled against Trump on several matters (while seemingly doing Trump an enormous favor by allowing him to postpone the trial date until after election day). There are actual processes to recuse a judge and standards that must be met for such a recusal. Trump’s lawyers have not even asked for such a thing, because they know they have no basis to request recusal in good faith. Those standards require more than “he ruled against me and he’s a Mexican.”

  • I don’t like Trumps comments, but I do have to wonder if this more about whose ox is being gored than anything.

    In May, 2009 the New York Times reported on remarks of then Supreme Court nominee Judge Sonia Sotomayor.

    WASHINGTON — In 2001, Sonia Sotomayor, 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.”

    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,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.


    Judge Sotomayor has given several speeches about the importance of diversity. But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges’ identities will affect legal outcomes.

    “Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”


    Still, Judge Sotomayor questioned whether achieving impartiality “is possible in all, or even, in most, cases.” She added, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”


    If Sotomayor acknowledges that men and women and people of different color and races may judge a case differently, is it that far out of the realm to think that a person from one “side of the tracks” would see a ruling from a person from another “side of the tracks” as somehow being “unfair” and “wrong?”

    As Sotomayor noted that a person of a different gender and race may see a case differently and rule differently, is it really a stretch for Trump to say “I am getting ruled against because the judge is Mexican?”

    What is “fair” in the eyes of one person may not be “fair” in the eyes of another. After all, I have never seen (okay rarely seen) a lawyer and client who walk out of court after losing a case not think they were robbed, gypped, treated unfairly, etc while the winners say “boy, that judge was great and ruled fairly and honestly.”

    I disagree with Trump on what he said and the way he said it, but at the same time, it is hard to get past the idea that even according to Sotomayor, judges do rule differently on the basis of gender, ethnicity, etc. That disparity can and will be seen by people as being “unfair.”

    • Sorry, but this is not merely “a matter of whose ox is being gored.” You can criticize (as I have criticized) Sotomayor’s notorious remark as fundamentally misguided and still recognize that it is a massive escalation to go from idle talk about “maybe people like me can add a new perspective” to Trump’s claim that a named judge in a case against him should be “looked into” and recused because the ethnicity of his parentage constituted irreparable bias. Sotomayor made no such suggestion and would assuredly never have been confirmed to the high court if she had. A better example, if you are casting about for a someone-else-did-it-first argument, is to the Black Panther types who preached that justice was not to be expected from white judges. Fortunately, we never considered electing a Panther as the nation’s chief magistrate.

      Stuart Taylor, Jr., who wrote strongly against Sotomayor’s comment at the time, also seems to recognize these differences:

      • Sotomayor’s comments went far beyond “idle talk about ‘maybe people like me can add a new perspective’.”

        “Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”

        Based on that, it is not a stretch to believe that a judge is biased based on ethnic and gender lines when rulings go against you.

        That doesn’t make the statements Trump made right, but clearly the bias exists and is acknowledged by some.

        (As another example, in my area there is a person running for a judgeship in family court who says because she is a woman, she will “be an advocate for women and children.” I can’t see how any male in a dispute in her court would not believe her rulings are biased or that he is working from a disadvantage.)

        It is a wrong to say that I am offering a “they did it first excuse” for Trump’s words. It just seems odd to me that people are screaming about Trump when in fact the idea of a bias has been around for awhile. Where Trump “jumps the shark” for me is not the idea (real or imagined) of a bias in a judge, but his call for retribution or investigation into the judge because of his case. That’s way out there and unsupportable in my opinion.

    • If Trump believes he is “getting ruled against because the judge is Mexican,” his lawyers can appeal the Judge’s legal conclusions and make a persuasive case why they are erroneous.

      Where does this end? If a black man kills a white man, what color must the judge be? If a black man and a Chinese woman together kill a Turkish man, should a multi-racial gender-balanced panel of judges be required? Should one really be able to replace their judge, manipulating the assignment process, by making increasingly outrageous statements and then claiming bias? How about disqualifying every judge in the district this way?