"Of course, the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." -- Justice Joseph McKenna, Berger v. United States (1921)
Supreme Court Justice Joseph McKenna, the author of the above quote, wrote his opinion in support of charges leveled by a defendant, Victor Luitpold Berger, toward a noted Federal Judge, Kenesaw Mountain Landis, who sat in judgment over Berger's trial on espionage charges in the aftermath of the First World War. Berger, an avowed socialists who had been elected to the U.S. House of Representatives by the citizens of Milwaukee, Wisconsin, in 1910, was charged under the Espionage Act of 1917 for his vocal opposition to America's entry into war against Germany (Berger had been born in Austri-Hungary, a co-belligerent with Germany during that conflict.) Berger was convicted at trial, and subsequently appealed his conviction on the grounds that Judge Landis had a personal bias and prejudice against him, and as such should retire from the case.
In support of his affidavit against Judge Landis, Berger quoted the judge extensively, including the following tirade:
One must have a very judicial mind indeed not to be prejudiced against the German-Americans in this country...You are of the same mind that practically all the German-Americans are in this country, and you call yourselves German-Americans. Your hearts are reeking with disloyalty.
The Honorable Kenesaw Mountain Landis was a highly considered jurist, perhaps most famously remembered for his role in the "Black Sox Eight" scandal of the 1920's, where the legendary "Shoeless Joe" Jackson was banned from baseball for life. But in this instance, Justice McKenna and five other members of the U.S. Supreme Court found that Judge Landis had crossed the line, and overturned the conviction of Berger that Landis had presided over on the grounds of the lack of judicial impartiality justice required (in 1922 all charges leveled at Berger and his fellow defendants were dropped; Berger was subsequently elected to three successive terms in Congress.)
The issue of judicial impartiality is not unfamiliar to anyone who follows the trials and tribulations of the American system of justice. The presumptive nominee of the Republican Party for the office of the Presidency of the United States of America, Donald Trump, has used this very issue to thrust himself into the public spotlight by disparaging the impartiality of the Federal District Judge, Gonzalo P. Curiel, who is presiding over a civil case before the Southern District of California involving allegations of fraud leveled by former students of "Trump University."
"I'm building a wall. It's an inherent conflict of interest," Trump has said about the judge, Judge Curial, whom Trump notes, "happens to be, we believe, Mexican." Judge Curiel is accused by the real estate mogul-turned-politician of anti-Trump bias because many of the policies espoused by candidate Trump, such as his calls to build the afore-mentioned wall and his anti-immigrant posture, would insult Curial's "Mexican" sensibilities when sitting in judgment over real estate mogul Trump. "I have a Mexican judge. He's of Mexican heritage. He should have recused himself, not only for that, for other things," Trump has declared, with no small amount of controversy.
The recusal of a judge is an extreme and infrequently implemented process in the American judicial system. But it is not unheard of. In the interest of full disclosure, I should note that I have, myself, successfully been involved in the recusal of judges presiding over cases I was personally involved in - one in New York, where a judge whose ruling against me was subsequently overturned on appeal recused himself from a subsequent hearing over the same issues, and one in Pennsylvania, where my motion for recusal of the trial judge was mooted by the court when it pre-emptively re-assigned my case to another judge in order to avoid dealing head-on with issues of prejudice and judicial sloth and incompetence.
I am not pro-Judge. I am, however, pro-justice. My personal experience in the American judicial system has exposed me to the reality that judges are mere humans, imbued with the same human foibles as the citizens they preside over. Far more often than Americans would like to admit, judges make decisions that are colored by personal prejudice and ignorance. Most of these cases take place in the lower courts, where local judges preside in a swamp of political influence, economic corruption and personal ignorance and prejudice. The higher one goes up the ladder of judicial decision-making, the better the quality of the opinions generated. However, to get this increased quality of judicial review, one usually must first suffer a negative judgment in the lower court that then must be appealed, often at great expense and always involving a great expanse of time (the appeals process can stretch on for years after the judgment involved becomes final.) "The remedy by appeal is inadequate," Justice McKenna noted in his opinion in Berger. "It comes after the trial, and, if prejudice exist, it has worked its evil and a judgment of it in a reviewing tribunal is precarious. It goes there fortified by presumptions, and nothing can be more elusive of estimate or decision than a disposition of a mind in which there is a personal ingredient."
Judge Curiel is a native of the United States of America, born in East Chicago, Indiana, a child of Mexican immigrants. His father, who emigrated from Mexico, was a steelworker who later received his citizenship. His mother likewise gained American citizenship after joining her husband in the United States. Curiel's personal resume is quite impressive, serving as an anti-drug prosecutor in southern California after graduating from Indiana Law School, before being appointed to the federal bench by President Obama. As a prominent lawyer of Mexican descent, Curiel is a prominent member of La Raza Lawyers of California, a non-profit association whose mission is to support Chicano and Latino lawyers in California. Trump and his supporter's have indicated that Judge Curiel's membership in La Raza Lawyers of California as evidence of a conflict of interest.
Trump's claims of prejudice do not rise to the same level of those alleged by Victor Luitpold Berger against Kenesaw Mountain Landis. To students of legal history, however, the racial overtones contained in Trump's allegations bring to mind similar allegations of judicial prejudice leveled against a noted black judge, Aloyisus Leon Higginbotham Jr., by the all-white members of Local Union 542 of the International Union of Operating Engineers. Judge Higginbotham was, at the time, presiding over a case involving Local Union 542.
The members of Union 542 objected to Judge Higginbotham's presence on the bench, citing among other complaints a speech the Judge gave at a meeting of black historians. The Judge's response to Local Union 542's calls for his recusal should be read and appreciated by all Americans, especially in the context of Donald Trump's attacks on Judge Curiel. "When stripped to its essence," Higginbotham wrote, "the gravamen of defendants' objection seems primarily based on the following express or implicit allegations: I am black;some of the defendant union's members are white."
What Judge Higginbotham penned next is worthy of extensive quotation:
I concede that I am black. I do not apologize for that obvious fact. I take rational pride in my heritage, just as most other ethnics take pride in theirs. However, that one is black does not mean, ipso facto, that he is anti-white...[t]hus a threshold question which might be inferred from defendants' petition is: Since blacks (like most other thoughtful Americans) are aware of the 'sordid chapter in American history' of racial injustice, shouldn't black judges be disqualified per se from adjudicating cases involving claims of racial discrimination?
Defendants do not go so far as to precisely assert that black judges should per se be disqualified from hearing cases which involve racial issues, but, as will be demonstrated hereinafter, 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.
Judge Aloyisus Leon Higginbotham Jr. did not, in the end, recuse himself from the case, and his opinion on the matter went on to become a legal classic. This final passage is telling, and is as relevant today as it was when it was written, more than 40 years ago:
To suggest that black judges should be so disqualified would be analogous to suggesting that the slave masters were right when, during tragic hours for this nation, they argued that only they, but not the slaves, could evaluate the harshness or justness of the system...If America is going to have a total rendezvous with justice so that there can be full equality for blacks, other minorities, and women, it is essential that the 'instinct' for double standards be completely exposed and hopefully, through analysis, those elements of irrationality can be ultimately eradicated.
Applying the Higginbotham experience with the Trump allegations leveled at Judge Curiel, one could reasonably construct the following analogous argument for Curiel's recusal:
"He is of Mexican heritage; I am not. He must step down."
It is a ridiculous line of argument, one that has no basis in the rule of law, and one which flouts the foundation of Constitutional law America is built on (and which a President Trump would be required to swear an oath of allegiance to.) But the Trump pronouncement's regarding Judge Curiel aren't simply ludicrous; they are dangerous, and insulting to the history of the country Trump says he want to make great again.
Judge Higginbotham was a black American, and extraordinarily proud of that fact. This embrace of his heritage did not impede his ability to sit in judgment on any issue, even those involving race relations. Donald Trump now questions the impartiality of a sitting federal judge, Gonzalo Curiel, simply on the basis that the man in question is of Mexican heritage, and Donald Trump holds controversial positions on the nature of US-Mexican relations.
Set aside the fact that Judge Curiel's position on US-Mexican relations, whatever they might be, has no bearing on the merits of the Trump University case he presides over. Instead, we should focus on the lack of any evidence offered by Trump to sustain his underlying allegation of judicial prejudice. Search as he might, there isn't the slightest indicia of predisposition to prejudice toward Donald Trump on the part of Judge Curial, and definitely nothing that rises to the level of judicial impropriety on display by Kennesaw Mountain Landis when he pointed at Victor Berger and his fellow defendant's and announced, "Your hearts are reeking with disloyalty."
We do, however, have Judge Curiel's remarks from an address delivered in 2014 at his alma mater, Indiana University:
Wherever your journeys take you, never forget how much we have to be grateful for and always aim to serve your family, your community and this great nation. If you do this, I can guarantee that success will follow.
In whatever heaven exists for noble Jurists, I am certain Aloyisus Leon Higginbotham Jr. smiled when he heard those words spoken.