Friday, June 10, 2016

Trump, Christie and Judicial Impartiality

Trump, Christie and Judicial Impartiality

Like others around the country we join the general hue and cry over Donald Trump's denunciation of Judge Gonzalo P. Curiel, a federal District Judge.  The Indiana born former federal prosecutor is unfit to pass on Trump's business conduct.  The judge's Mexican heritage, says the defendant, prevents him from being impartial because `I'm building a wall".  28 USC 455 commends to each judge the decision whether to disqualify himself due to "personal bias or prejudice concerning a party".  Rather than make a motion in the ordinary course Trump has taken a bullying stance that has raised great concern about his own fitness for the office he seeks.

That neither race, ethnicity, nor gender presumptively bars a judge or juror from passing impartially on a case is deeply embedded in our law.  Only a week ago in Foster v. Chatman, Warden the Supreme Court vacated a capital conviction because the Prosecutor arbitrarily excluded prospective jurors who, like the defendant, were African American.

That an African American judge may pass on matters in which race is relevant is deeply embedded in our law, as is the corollary principal that female may pass on women's issues.  The landmark judicial opinion on the issue is Commonwealth of Pennsylvania v. Local 542, 388 F. Supp. 155 (974).  there Judge A. Leon Higgiinbotham, later Chief Judge of the Third Circuit, repudiated the proposition asserted in a motion to disqualify him in a class action alleging discrimination by a building trades union. He wrote:
...the absolute consequence and thrust of their rationale would amount to, in practice, a double standard within the federal judiciary. By that standard, white judges will be permitted to keep the latitude they have enjoyed for centuries in discussing matters of intellectual substance, even issues of human rights and, because they are white, still be permitted to later decide specific factual situations involving the principles of human rights which they have discussed previously in a generalized fashion. But for black judges, defendants insist on a far more rigid standard, which would preclude black judges from ever discussing race relations even in the generalized fashion that other justices and judges have discussed issues of human rights. Under defendants' standards, if a black judge discusses race relations, he should thereafter be precluded from adjudicating matters, involving specific claims of racial discrimination.
This principle is immutably established in law and practice.  We are therefore disturbed greatly by a leading Presidential candidate's repudiation of that principle.  And we are particularly disturbed as New Jersey lawyers that the former United States Attorney for our District, Governor Chris Christie has refused to renounce Trump's remarks.  In addition to his important role in the New Jersey legal community the Governor is bruited as a potential Attorney General in a trump administration.

Therefore his defense of Trump on First Amendment grounds is an irresponsible evasion of the central point:  ethnic identity of a judge is not an inherent bar to impartiality.  We hope that the Governor will recognize his error and reprove Mr. Trump's now oft repeated assertions - that no judge of Mexican American heritage, nor even a judge of Muslim origin, should be allowed to sit in any case in which Trump is a party.  Not only is the demand unwarranted in his case, but the acceptance of the principle would undermine an essential tenet of judicial independence of judgment.
- George Conk

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