Justice must be seen to be done

The dispute between Republican presidential candidate Donald Trump and the judiciary is beginning to show more flaws in the latter than the former.

Writing in the Washington Post, former Judge Cruz Reynoso called Trump's attacks on Curiel "appalling."  What is truly appalling is that Curiel is a lifetime member of the Hispanic National Bar Association (HNBA), an organization containing a large number of judges and attorneys that took the odious step of publishing a press release last summer calling for a general boycott of Trump's business enterprises by all American businesses and corporations.

And yet this judge, a proud member of an organization that seeks to bring economic warfare against a presidential candidate, is still presiding over a case involving the same presidential candidate's business interests?  And the Twitter feed of the HNBA continues to troll Trump up until the present?  Who is really bringing the administration of justice into disrepute?

The HNBA contains a list of links to its affiliate organizations, and readers are encouraged to visit these subsidiaries and make a list of HNBA members who either are judges or work in the government sector.  For those whose views of American society may dovetail with Trump's, or involve non-politically correct views of LGBT issues, one may want to think twice about engaging the legal system with or against a HNBA member.  Interestingly, a month and a half after it released its call for a general commercial boycott against Trump, the HNBA welcomed Senator Elizabeth Warren as the invited keynote speaker for its annual conference.

Several months ago, Senator David Perdue (R-Ga.) apparently withdrew his support for a Hispanic judicial nominee, and the first thing the HNBA did was formally and publicly accuse the senator of racism: "Our only inference is that he's unacceptable to Senator Perdue because he is a Latino who believes in Latino participatory democracy."  So the judicial branch can, via its HNBA proxies, attack the legislative branch, but nobody can question the judiciary?

With regard, once again, to Curiel's membership in the HNBA, the HNBA's attack on Trump's business interests, and Curiel continuing to preside over a case involve Trump's businesses, one is reminded of 28 U.S. Code § 453 (Oaths of justices and judges), which states that "[e]ach justice or judge of the United States ... will administer justice without respect to persons ... [and] will faithfully and impartially discharge and perform all the duties incumbent upon ... under the Constitution and laws of the United States."

The Federal Judicial Center has reviewed and summarized the federal law surrounding judicial disqualification in the United States, and this analysis further suggests that the evolving situation with respect to the Trump University cases is deeply problematic, given what we know about the presiding judge's associations:

[T]he Due Process Clause of the Fourteenth Amendment to the United States Constitution has been construed to guarantee litigants the right to a "neutral and detached," or impartial, judge. Moreover, in a democratic republic in which the legitimacy of government depends on the consent and approval of the governed, public confidence in the administration of justice is indispensable. It is not enough that judges be impartial; the public must perceive them to be so. The Code of Conduct for United States Judges therefore admonishes judges to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary" and to "avoid impropriety and the appearance of impropriety in all activities." When the impartiality of a judge is in doubt, the appropriate remedy is to disqualify that judge from hearing further proceedings in the matter.

Under 28 U.S. Code § 455, "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."  Section (b) also specifies that "[h]e shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party ... (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: ... (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."

Statute 455(b)(5)(iii) appears to potentially encompass Curiel's relationship with both Trump and the HNBA that involves support for the HNBA and a reasonable presumption of support for its call to damage Trump's business interests while presiding over a case directly capable of damaging Trump's business interests.

The U.S. inherited much of its common law from the United Kingdom, and while the decisions of the House of Lords are not binding on American soil, they are and should be very persuasive, given the favor accorded to the views of this court around the world.  To return to some applicable quotes from the judgment of Lord Browne-Wilkinson from In Re Pinochet:

[O]nce it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure. I will call this "automatic disqualification." ...

The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties ...

There is no room for fine distinctions if Lord Hewart's famous dictum is to be observed: it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." (see Rex v. Sussex Justices, Ex parte McCarthy [1924] K.B. 256, 259)

Indeed, justice should not only be done, but manifestly and undoubtedly be seen to be done, and it is difficult to see how that standard is met by Judge Curiel continuing to preside over the Trump University lawsuit cases.