A Tale Of Two Judges

Two judges have come under national scrutiny lately, United States District Judge Gonzalo Curiel, and Santa Clara County Superior Court Judge, Aaron Persky. Judge Curiel is the judge in the Trump University Case. Judge Perksy presided over the Stanford swimmer, Brock Turner’s sexual assault trial and his sentencing. Both judges have come under heavy media attention and criticism.

An independent judiciary is central to our democracy. We cannot have judges whose decisions are based on whether they are popular or not. Accordingly, we must think long and hard before trying to intimidate judges with public opinion. In some instances, such criticisms may well be warranted. In other cases, they may pose unjustifiable threat to an independent judiciary.

In a two part series of posts I would like to examine both of these cases and compare the criticisms and see which category they each fall under.

In this post we will look at The Trump University case. It is important to note that this case is on-going. That is, this case is still in litigation, motions are being heard and rulings are being made. This is key information in evaluating the controversy.

As background, The Trump lawsuit is actually 3 class action lawsuits filed on behalf of consumer/students that attended Trump University. One of the suits was filed and is ongoing in the state court in New York. Two of the suits have been filed in federal court and are ongoing in San Diego, California. It is the suit in San Diego federal court that has garnered headlines in recent days.

These lawsuits were filed against the University and Donald Trump personally. The plaintiffs contend they were deceived into paying tens of thousands of dollars to Trump University which falsely promised to deliver Trump’s personal “real-estate secrets” by his “hand -picked professors”. The “hand-picked” professors were actually salespeople paid on commission to coerce the students into signing up for more high priced courses. The plaintiff’s assert that the University’s illegal business practices violated federal and state laws. Trump and the University defend the position that they are blameless evidenced by their claim that 98% of the students filled out feedback cards praising the program.

Earlier this month, Donald Trump brought this case into national headlines by claiming to the press, that he has been treated unfairly in the case being heard by United States District Judge Gonzalo Curiel and that the case against him should have been dismissed because Judge Curiel is Mexican. Trump call Judge Curiel, who was born in Indiana, a “hater, and he claims his being Mexican is grounds for the judge’s removal from the case. This case is set for trial in November.

Trump told a campaign rally, “ I mean frankly, he should recuse himself because he’s given us ruling after ruling after ruling, negative, negative, negative.” Mr. Trump cites no specifics as to how he was treated unfairly. There is a difference between having rulings go against you, and being treated unfairly. Often times, rulings go against a party. In fact, I can state categorically that one party always loses the argument. But that doesn’t mean the ruling was “unfair”. Unfair might mean the judge didn’t read the briefs, didn’t study the law, didn’t allow the parties to fully argue their positions, etc. Mr. Trump has cited no such examples of unfairness. His only claims are that some rulings have gone against him. Certainly, this is not a basis for claiming a judge is biased against you.

But Trump goes on to argue that he can’t be treated fairly because Judge Curiel is a “Mexican” judge. First, Mr. Trump is mistaken when he calls the judge a Mexican, as he is obviously a United States citizen of hispanic heritage. Going beyond that however, Trump claims Judge Curiel’s being Mexican is grounds for his removal from the case. In other words, Mr. Trump wants the judge dismissed solely because of his hispanic heritage. Most objective observers would call this racism, i.e. the categorizing of a person’s character based solely on his race.

Here is an example of his racially based comments against Judge Curiel from his appearance on CNN. He clearly is arguing that he cannot get a fair hearing in front of an hispanic judge.

Trump: Look, he’s proud of his heritage. OK? I’m building a wall. Now, I think I’m going to do very well with Hispanics.

Tapper: He’s a legal citizen.

Trump: You know why I’m going to do well with Hispanics?

Because I’m going to bring back jobs, and they’re going to get jobs right now. They’re going to get jobs. I think I’m going to do very well with Hispanics. But we’re building a wall. He’s a Mexican. We’re building a wall between here and Mexico.

The answer is, he is giving us very unfair rulings, rulings that people can’t even believe. This case should have ended years ago on summary judgment. The best lawyers — I have spoken to so many lawyers. They said, this is not a case. This is a case that should have ended.

This judge is giving us unfair rulings. Now I say why. Well, I want to — I’m building a wall, OK? And it’s a wall between Mexico, not another country, and …

Tapper: But he’s not — he’s not from Mexico. He’s from Indiana.

Trump: In my opinion — he is — his Mexican — Mexican heritage. And he’s very proud of it.

It is significant to consider who is making the criticisms. In this case, the defendant himself in a matter that is in litigation. A central principle of our United States system of government holds that judges should be able to reach decisions free from political pressure. In this case, the defendent, who is the presumptive Republican nominee for the office of President of the United States is claiming a judge is unfair- based on his ethnicity, during the course of that case. I believe this is a threat to an independent judiciary.

As an Alameda personal injury lawyer, I have tried many cases throughout northern California, and appeared before many judges, male and female, caucasian and people of color, old and young. Their decisions haven’t always gone my way. But overall, I believe my clients get a fair shake from the judges and juries who hear our cases. I am thankful to them for the time and effort they put into their decisions. I believe people should appreciate the independence of our judiciary. One should seriously consider and understand the facts of any given case before one criticizes the impartiality of a sitting judge. The attempt to intimidate a sitting judge based on unproven claims of bias, whether based on race, gender, or any other factor should play no part in a civilized democracy.

Public criticisms of a party to the lawsuit while the lawsuit is still in progress, as with the case with Mr. Trump can only be seen as a means to intimidate the judge, and/ or drum up more support for his divisive immigration policies.

Next post: Public outcry over Judge Persky’s sentencing ruling in the Brock Turner case and it’s implications of an independent judiciary.


Donald Trump’s racial comments about Hispanic judge in Trump University case, Politifact, June 8, 2016.

Trump University Case: Who is Judge Federal Judge Gonzalo Curiel, NBC News, June 2, 2016

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