[Cross-posted from The Faculty Lounge]
Alberto Gonzales has now weighed in on the question of Judge Gonzalo Curiel’s ability to provide Donald Trump with a fair trial. Invoking the Code of Conduct for Federal Judges, the former U.S. attorney general and justice of the Texas Supreme Court argues that there are two legitimate questions concerning Judge Curiel’s impartiality. First, there is Curiel’s membership in the La Raza Lawyers of San Diego; second, there is Curiel’s appointment of the Robins Geller law firm as lead counsel in the class action case against Trump University. Either of these, says Gonzales, might create an “appearance of impropriety.” (Note to judicial ethics people: Gonzales evidently meant “appearance of partiality,” which is the standard for recusal under both the Code and the federal statute; “appearance of impropriety is the standard for discipline, not disqualification.)
Regarding Gonzales’s first claim, we can turn again to Judge Leon Higginbotham’s opinion in Commonwealth of Pennsylvania v. Local Union 542, International Union of Operating Engineers. As many readers know, Judge Higginbotham was only the seventh African-American ever appointed to a federal court. In the Local 542 case, the defendant union in a civil rights case sought his disqualification in part because he had “addressed a luncheon meeting of the Association for the Study of Afro-American Life and History,” a group of black historians, at which he criticized several SCOTUS rulings on racial discrimination. (My post about the purely racial aspect of the disqualification motion is here.)
Here is what Judge Higginbotham had to say when denying the motion:
This organization was not a labor group, not an institute of management, not a political party, not the Black Panthers, not any entity which on or off the record has ever had a history antagonistic to those white Americans who believe in equal justice under the law. . . .
Is there anything more malevolent in speaking to a group of black historians about equal justice under the law than for a Catholic, Jewish, or Protestant judge to speak in his cathedral, synagogue or church on the Sermon on the Mount, or the Torah? If a Catholic judge spoke to a group of Catholic historians, should he be forever barred from adjudicating cases involving the constitutionality of state appropriations disbursed to parochial schools?
True, Judge Curiel is member of the La Raza Lawyers association, whereas Judge Higginbotham was only a speaker at the black historians meeting, but the logic holds equally in both situations. There is nothing about either organization that would create an appearance of partiality toward or against a particular litigant.
Gonzales’s second argument is even more far-fetched. He points out that the Robins Geller firm paid a large speaking fee to Hillary Clinton, and from this his posits that the firm – and by extension Judge Curiel – might favor her in the coming election. Put aside for the moment that the appointment of Robins Geller was in 2014, a year before Trump announced his presidential plans, and consider that virtually every federal judge most likely either favors or disfavors Trump in the coming election. By Gonzales’s reasoning, they would all therefore be subject to question. Gonzales himself was elected to the Texas Supreme Court as a Republican, but he did not disqualify himself in case that were argued by the state’s Republican attorney general, with whom he shared a party affiliation (nor should he have).
Other Republican leaders have had the good sense to distance themselves from Trump’s claims about Judge Curiel. It is too bad that Alberto Gonzales – former judge, former attorney general, and current law school dean – took the route of apologetics.