UPDATED: Did Trump Just Out-Lawyer the Lawyers?


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UPDATEIn 2001, in a speech, now Associate Justice Sonia Sotomayor said the ethnicity and the gender of a judge “may and will make a difference in our judging.”  In other words, it is quite possible Donald Trump is right about Judge Gonzalo Curiel. 

“…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.

Her remarks, at the annual Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California, Berkeley, were not the only instance in which she has publicly described her view of judging in terms that could provoke sharp questioning in a confirmation hearing….”


“…The recusal rule may be avoided or ignored if all parties and the judge agree, although in practice this rarely occurs. If recusal is avoided in this manner, a full and complete record of the facts that qualify as grounds, above, must be made for the appellate court. If a judge fails to recuse themselves sua sponte and a party believes the judge has a bias the party may motion for substitution. In some jurisdictions litigants may have the right to substitute a judge, even if no bias is demonstrated….”

Once again it looks like Donald Trump has out maneuvered everyone, including his supporters.  I’m not quite sure if that is a good thing or a bad thing.  He had managed to get his name in the news and completely dominate the news cycles.  From what I gather, his theory is that it doesn’t matter what sort of publicity he gets, just so he dominates the news cycles.  There is a very big risk in doing this.  The pay-off is huge.  The downside is also huge.  The downside is that people who truly are guilty are going to use the same tactics against judges who rule against them.

“…Judges in local, state and federal courts across the country routinely hide their connections to litigants and their lawyers. These links can be social – they may have been law school classmates or share common friends – political, financial or ideological. In some instances the two may have mutual investment interests. They might be in-laws. Occasionally they are literally in bed together. While it’s unavoidable that such relationships will occur, when they do create a perception of bias, a judge is duty-bound to at the very least disclose that information, and if it is creates an actual bias, allow a different judge to take over….”

On Monday, the brother of U.S. District Judge Gonzalo Curiel, furious with Trump, went on the attack.  Unfortunately, family members of judges like this aren’t exactly known for attacking someone attacking their judicial relatives.  First, has his brother been discussing the case with him?  If so, is that a problem?  Second, is the man just responding to attacks by Trump surrogates?  And, yes, the case should NEVER have gone this far.  It is about a class-action suit brought about by ambulance chasing, Hillary supporters who found three, count ’em THREE individuals out of thousands, to file a suit against Trump.  Where Trump is wrong is not admitting it was a self-help course.

Trump is probably right about Curiel’s bias. He can’t out and out say the man is biased because he’s a big time Democrat.  He should be attacking the class-action suit as being a political witch-hunt and get-rich-quick scheme by a bunch of class-action attorneys.  You should also note that class-action attorneys are in it, not for the good they do for humanity but for million-dollar pay-days.  The little people who brought the suit get a fraction of what they do.

Judges aren’t perfect.  It is called Judicial Misconduct.  Most of the time they get caught doing what brings down most politicians – a sex scandal.  Is Donald Trump a victim of Legal Abuse?  Can a wealthy person be a victim?  Yes, they can.  In fact, if Trump were to turn this around, by highlighting the damage legal abuse does, he could turn this into a cause.  Bad things happen to good people, all in the name of the law.    Or, is Donald Trump crazy like a fox, and playing on a possibility of Curiel’s judicial bias?

In fact, it is entirely possible, if you use SCOTUS as an example, Trump is actually right.

“…In the Supreme Court of the United States, the Justices typically recuse themselves from participating in cases in which they have financial interests. For example, Justice Sandra Day O’Connor generally did not participate in cases involving telecommunications firms because she owned stock in these firms, and Justice Stephen Breyer has disqualified himself in some cases involving insurance companies because of his participation in a Lloyd’s of London syndicate. Justices also have declined to participate in cases in which close relatives, such as their children, are lawyers for one of the parties. Even if the family member is connected to one of the parties but is not directly involved in the case, justices may recuse themselves – for instance Clarence Thomas recused himself in United States v. Virginia because his son was attending Virginia Military Institute, whose policies were the subject of the case. On occasion, recusal occurs under more unusual circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the United States Reports will record that the named justice “took no part in the consideration or decision of this case.”…”

If one were to use SCOTUS as an example Judge Curiel would have automatically stepped down from this case.  The problem is, there are times when lower court justices are not as honorable as is SCOTUS.


“…A judge who has grounds to recuse himself is expected to do so. If a judge does not know that grounds exist to recuse themselves the error is harmless. If a judge does not recuse themselves when they should have known to do so, they may be subject to sanctions, which vary by jurisdiction. Depending on the jurisdiction, if an appellate court finds a judgment to have been made when the judge in question should have been recused, it may set aside the judgment and return the case for retrial….”

If the case goes against the person we all hope will be President-Elect Trump, he has grounds for an appeal. There are so many problems here that people are going to be discussing this case for years to come.

  • Can a judge of an opposite political ideology be unbiased when dealing with a POTUS candidate?
  • Does just having the opposing attorneys having donated nearly a million dollars to the opposing candidate render the case suspect?
  • If the judge is a member of a group who vehemently opposes a candidate’s positions, can that judge be impartial?  Should that judge automatically be required to recuse him/herself?
  • Does a person running for POTUS even have a right to defend him/herself in court?
  • When does a person running for POTUS surrender the rights a normal person has to defend him/herself – or do they?

Everyone is quite busy rushing to criticize Trump.  The problem is – what is he’s right?  I think it could go either way.  I do think, though, this is going all the way to the Supreme Court.  If so, we’ll need to wait at least 9 years (I hope) for a resolution.

UPDATE:  Is it possible, considering the Sotomayor quote and the fact that we now know that Judge Curiel belongs to an organization which has called for a boycott of Trump owned businesses that Donald Trump is correct.  The man is biased because of his ethnicity, if Justice Sotomayor is to be believed.  When one considers the Sotomayor quote, is it possible Trump and his advisers knew about this, and attacked from an angle of attempting to get a biased judge to recuse himself out of knowledge and not racism?  Nah, that doesn’t fit the liberal narrative.