A Curiel Turn of Events

Fenster writes:

Trump’s comments on the judge in the Trump University case are curiel indeed.

He leads with his chin, making the most of the fact that Curiel is “Mexican”.  That allows the mainstream press to pummel him.  Curiel is from Indiana fer chrissakes.  And since when should ethnicity in itself be a reason for disqualification or recusal?  And it’s racist.

Trump himself does little to make a more nuanced argument.  When Jake Tapper describes Trump’s position as being opposed to Curiel handing the case because he is “of Mexican origin”, Trump agrees.  “He’s Mexican descent.  I’m building a wall.”

And so it goes.  Good legal minds like Ilya Somin and Jonathan Adler at The Volokh Conspiracy have little problem tearing through the argument that being Mexican is enough to warrant recusal.

Former AG Alberto Gonzales sort of sticks up for Trump, but it is not a full-throated defense, and consists mainly in maintaining that he has a right to ask.  That’s not very strong stuff, particularly in comparison with the flammable way Trump has chosen to frame the issue–it’s about “Mexican.”

So is Trump crazy or crazy like a fox?

Damned if I know.

Maybe he is just trying to rile up the poorly educated yahoos and that’s all there is to it.  But there could be more.  Is there more to Trump’s objection to Curiel, even if he has yet to articulate it?

There has been a lot of ink spilled on whether the La Raza lawyer’s group that Curiel is affiliated with backs the political program of the larger advocacy group, La Raza.  There is no direct affiliation, and Right and Left are now furiously trying to make or discount connections.  The idea is that the greater the affiliative and personal ties between the two groups the better the argument for recusal.  But it is all kind of gray, a shade which is at odds with the black-and-white way Trump has formulated the issue.

So here maybe is a better, clearer tie.  Curiel may not be a member of La Raza but he does appear to be a member of the Hispanic National Bar Association (HNBA).  That association–which is an association of attorneys, a professional association, and not an ethnic advocacy group–called for a boycott of all Trump enterprises.

The HNBA calls for a boycott of all of Trump business ventures, including golf courses, hotels, and restaurants.  We salute NBC/Universal, Univision and Macy’s for ending their association with Trump, and we join them in standing up against bigotry and racist rhetoric. Other businesses and corporations should follow the lead of NBC/Universal, Univision and Macy’s and take similar actions against Donald Trump’s business interests.  We can and will make a difference.

This looks pretty damning to me.  It is one thing to say “hey, I’m not in La Raza” or “yes I am of Mexican descent but what of it?” or even “yes I oppose Trump’s politics but that would not taint my judicial approach.”  But here, we have a professional association of attorneys openly calling for economic harm to Trump’s businesses.

Now, to be fair, Curiel’s Questionnaire for Judicial Nominees does not suggest a professional record of activism.  Divorces.  Municipal law.  Some criminal cases.  He was for over a decade a federal prosecutor with significant involvement in drug and money laundering cases dealing with Mexico and a few times attended events dealing with Latino issues.  But his legal and prosecutorial work was essentially unrelated to immigration, and his work outside work shows little activism.

As to judicial philosophy, his answers to questions from senators during the confirmation process do not suggest he falls in line with Sotomayor’s “wise Latina” kind of thinking ethnic:

The judicial process must be administered fairly without regard to a person’s background, economic situation or personal situation. Cases must be decided based upon admissible evidence and the applicable law. Empathy does not play a role in the judicial process. . . . A judge protects the “little guy”(and the “big guy”) by applying the law fairly and evenhandedly to all of the parties whether they are“little” or “big.”

On the other hand, he describes himself in the Questionnaire as being a “lifetime member” of HNBA (p. 4).  Additionally, he is quite forthright in describing how he would always take the prudent high road on conflicts of interest and recusal (pp. 45-46).   For instance, he says that if confirmed he would likely step down from a Board position at a non-profit K-8 learning academy, this when the law permits a judge to hold such a position and when he has never had occasion to play a part in a case where any conflict would arise.  So he expresses all the correct careful notes, as he should.  But now here he is–a lifetime member of a group officially on record as favoring damage to Trump’s economic interests–serving as a judge on a case dealing with Trump’s economic interests.  Surely there is enough in just this set of facts to suggest that some concern would be appropriate.

So why does Trump continue to lead with his chin?  He briefly mentions Curiel’s memberships in the Tapper interview but mostly passes the issue by.  Is it because he is a Neanderthal?  That he doesn’t grasp the significance of HNBA’s call for a boycott?  That he is just inarticulate?

Or does he get it?

Trump has sometimes been likened to Ali.  The Donald could be doing a rope-a-dope.

About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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16 Responses to A Curiel Turn of Events

  1. plwinkler says:

    Well, we now know who you’re going to vote for.

    Like

    • Fenster says:

      I wasn’t aware that I had taken a side. But I guess thinking has been replaced by signaling and I ought not be naive about it.

      Like

  2. Trimegistus says:

    I say he’s being shrewd.

    What so many smart people in the Republican party still don’t grasp is that American politics has been boiled down to the level of Twitter. You have to express everything in 140 characters or people get bored.

    “I think this judge might have a conflict of interest in hearing my case, based on his affiliations and past history of advocacy” might be more accurate, but it’s also too long and too weaselly-sounding. Trump doesn’t do that. He says “the judge will be against me because he’s Mexican.”

    Now the great thing is that he’s doing a judo-flip of the Democrats’ main argument against him. “Trump hates Mexicans!” they scream. They also maintain that minorities can’t get a fair shake from white judges because of racism. So Trump says he can’t get a fair shake from a Mexican (-American) judge. Now his enemies have to either reverse themselves about Trump (“Mexicans have no reason to oppose Trump!”) or about justice (“The color of a judge has no bearing on his decisions!”). Either way they’re gnawing a leg off that’s caught in their own trap.

    Like

  3. plwinkler says:

    “We salute NBC/Universal, Univision and Macy’s for ending their association with Trump, and we join them in standing up against bigotry and racist rhetoric.”

    Are the CEO’s of those companies also all Hispanic or members of a professional association of Hispanic CEO’s?

    Is it not possible to assume that their objection to Trump arises not from their ethnicity but from their principles? Ditto Curiel?

    Why haven”t any of Trump’s attorney’s objected to Curiel presiding over the case, even after Curiel has ruled against Trump?

    “Based on a pretty good amount of evidence, Trump University was a fraud, Trump did lie about the extent of his participation in it, and the people he defrauded should have their day in court. I see no evidence that Curiel has done anything wrong whatsoever in this case, or improper.”
    http://www.redstate.com/leon_h_wolf/2016/06/03/dishonest-attempt-associate-gonzalo-curiel-la-raza/
    Trump is certainly no Ali when it comes strategy. If Curiel didn’t previously harbor any personal animus towards Trump, he certainly might now.

    Like

    • Fenster says:

      Well there’s a lot that I can’t follow about this escapade owing to Trump’s brutalist approach to the facts as well as the usual media tilt. I have read a lot in the past few days about how he did not object in the past to Curiel so that makes his objections suspect today. Yet here is a CBS News article from 2014 stating quite clearly that Trump planned to ask Curiel to recuse.

      http://www.cbsnews.com/news/lawsuit-accuses-donald-trump-of-deceiving-students/

      Relevant quote:

      “We plan to appeal,” Garten said of the decision to certify Cohen’s suit as a class-action, adding that he expects to prevail since the ruling showed a “manifest disregard for the law.” Trump also will ask the judge in the case, Gonzalo P. Curiel, to recuse himself because of what Garten called “animosity toward Mr. Trump and his views.”

      So this goes back to before Trump was a candidate, and before when CBS could report on something like this without gagging. What does it mean for today that neither Trump nor the media have gone back to explore what the issues were going back to 2014? I don’t know.

      Also you ask if Curiel and CEOs both might object to Trump on principle and not on ethnic grounds. But aren’t those two matters fused in this instance? Yes, the HNBA was presumably acting on what it felt to be principled grounds in asking for a boycott of Trump. They did not like his stance on immigration or his comments about immigrants. But isn’t that just it? They are free to draw that policy conclusion on “principle” but once they do are they not required to recuse if they are judging the case? How can they judge impartially if principle compels them to damage Trump’s businesses?

      And as to whether Trump is being shrewd or is just a mean version of Chauncey Gardner: I said I don’t know and I mean it. He presents himself as the latter, at least to my eyes. But I am a classic overeducated symbolic workerbee and whatever my political point of view I expect an articulate explanation, and when I get gibberish I assume the speaker is not capable of thought. But I have been around enough to know how easy it is to be wrong, and to tilt in the direction of my own biases, so I am open to the notion that he is playing a more subtle game than it seems.

      Liked by 1 person

  4. Johnnymoreno says:

    Thank you for your interesting and informative post.
    I look forward to more of your insights on the headlines of the day…

    Like

  5. JV says:

    His original comment and subsequent responses when questioned about it were flat-out racist. His non-apology today took the classic “I’m sorry my comments were misconstrued” tack, when clearly his comments were understood at face value for what they were. Whether or not Trump had previous misgivings about the judge, or whether he’s playing some kind of 3D chess, I don’t think is relevant. I’d bet that he didn’t think at all when he blurted out that Curiel can’t be impartial in this case because “he’s Mexican.” Trump was being challenged and because he’s INCREDIBLY insecure, his first response is always, always, to lash out in an ad hominem way.

    I do appreciate the information on the professional association Curiel belongs to, I agree that it’s inappropriate for a such a legal association to call for a blanket boycott on, well, anything, due to the possibility/probability that one of their members could be involved with a case where the target of their boycott is a plaintiff or defendant, even if it’s unlikely Curiel was directly involved with that decision. But the fact that Trump couldn’t articulate that in multiple interviews doesn’t bode well for him (us) in the Oval Office.

    Liked by 1 person

    • Fenster says:

      That’s sort of where I come out at the moment. I think the right is onto something in its meta-critique of the issue. But even if that critique holds water you are left with the issue of Trump, who is after all the candidate and whose character is the main event, at least for me.

      Yes it is possible he was playing a kind of rope-a-dope, at least in his own mind–I am less sure than you that it is all a matter of a reflexive and insecure lashing out. But he must know that even if he is playing that kind of 3D chess that he is making statements that are objectionable and not supportable, that he will be painted as a racist and that the charge may stick.

      I might feel differently if he quickly distanced himself from the racist interpretation and, having laid a kind of trap, capitalized on it by making an argument about Curiel’s bad faith, if such an argument can be made. But he did no such thing. He made an objectively stupid statement and then muddied the issue in his quasi-backing off today. That suggests to me that you are likely right–that there is no master strategy. And that maybe he is fine leaving the residue of the racist interpretation out there, thinking it is good for his base politically. Which is not a good sign.

      Liked by 1 person

      • JV says:

        Not only that, but he doubled-down and included Muslims in the pool of people who couldn’t be impartial to him due to his many statements on the campaign trail. Not to mention his statements on this matter completely ignore the concept of an independent judiciary. He’s a classic narcissist who thinks the world is out to get him and treats him unfairly any time he’s criticized. I mean, all politicians are narcissists, but Trump takes it to a new level.

        Liked by 1 person

  6. Slumlord says:

    One of things that never gets attacked as point of societal weakness is the English system of Law.
    Judges are meant to be impartial for the system to work but as the whole Supreme Court nomination process proves, the judges aren’t.

    Like

  7. peterike says:

    To me, this is one of those emperor’s new clothes situations where everybody knows exactly what the score is, but due to suffocating PC culture nobody can admit it. Yes, OF COURSE the Judge is going to be biased because he’s Mexican. Ethnic biases trump (no pun intended) everything, except among pathologically altruistic whites who are biased against their own group. NO other ethic group on earth does this. Add in that for months Trump has been presented every day as a Mexican hater. Well what do you suppose a Mexican judge might think? What might his Mexican friends and family members be whispering in his ear, even if he wanted to be unbiased?

    Of course it will influence his thinking. If you don’t believe this, then you’re probably a pathologically altruistic white. No one else could be so naive.

    The gross hypocrisy of the media and the Left on these kinds of issues is equally self-evident. It’s the height of squishy wonderfulness when nitwit Judge Sotomayor squawks about how great it is to be a “wise Latina” and how important that is to her decision making, yet if you questioned her on something due to the fact that she’s a wise Latina then you’re a horrible white racist. The Left has lived by double, triple and quadruple standards for so long that they no longer know what they are doing. They literally don’t understand what they are saying.

    Trump takes the approach of simply blasting through all the double-think and hypocrisy and anti-white biases and he just says the thing that everybody intuitively understands.

    Like

    • Fenster says:

      Everything you say about the bigger picture could be true AND Trump could still be Chauncey Gardiner. So on the one hand we have an interesting discussion about the role of ethnic identity in judging and on the other we have a presidential candidate muttering about Mexicans. It is not blazingly obvious that these two threads connect as neatly as you suggest. So for now I am treating these as two separate discussions. The role of ethnic identity in law is an important issue worth talking about. The character, judgment and temperament of Trump as president is another. Perhaps these two things will connect down the line.

      Like

    • JV says:

      Judges are people, of course they’ll have their biases, just like journalists, doctors, and any number of other occupations where impartiality is expected of a person. But most people take that with a grain of salt and accept that it’s impossible to eliminate personal bias completely due to human nature, which is why we have laws in the first place and checks and balances and all that high school Civics course stuff. There are some fundamentalists who foolish demand and expect total impartiality of the people in these occupations and are shocked (shocked!) when any hint of bias, founded or unfounded, is detected. What rankles with Trump’s comment is that he’s using ethnicity as a litmus test to whether a judge is able to do their job or not, instead of a person’s history, thereby collectively delegitimizing a group of people as unworthy to preside over a case (any case, in fact) where Trump is involved. That’s flat-out wrong, ESPECIALLY coming from a Presidential nominee from one of our major political parties. It’s not only the textbook definition of racism, as Paul Ryan declared, but it’s awfully close to the textbook definition dictatorship. Yeah I said it, ha.

      Liked by 1 person

      • Fenster says:

        We have to at some point work off of what people say and not what 3d chess they may or may not be playing. So in that regard I will grant you that what Trump said is objectionable.

        I do think though you are minimizing the issue of possible bias (you can’t completely eliminate bias, you have to work to minimize it, etc.). Look at the facts here: the main professional association of Hispanic attorneys is on the record as aggressively anti-Trump, and backs that up with an actual call to action that has grit and consequences. Curiel may or may not support that call but for the *association*–which presumably does a fair job of reflecting the views of its members–this seems to rise above garden variety blinders.

        A thought experiment. What if when asked about this by someone like Tapper Trump said something like this: “of course I am not generalizing to all Mexicans or people of Mexican descent. As you know I have said repeatedly I think I will get a lot of those votes in the coming election and I will be proud to get them. But on ethnic matters the elites are often at odds with the people. That’s the case with Hispanic attorneys. The main professional association–where Judge Curiel has been a lifetime member–has called for a boycott on all of my businesses. Imagine! A professional association of lawyers asking that people try to damage my businesses! I think Judge Curiel ought to recuse himself from my case under the circumstances. At the least I would hope he would disavow any connection to that boycott idea. How could he fairly judge me if he favors damaging my business interests on grounds unrelated to the case he is judging? Jake, have you asked Judge Curiel about this?”

        Of course that is not what he said, or even probably what he was thinking, if he was thinking at all.

        Liked by 1 person

      • JV says:

        Ha, well if he did say something like that, I’d agree with him completely. However, as you mention, he didn’t say anything even nearly that nuanced and thoughtful, and he doubled down by including Muslims in his group of people not fit to work on a case involving him. Not Muslims who belong to this or that professional group, but Muslims, full stop, which clearly demonstrates that his reasoning is based solely on ethnicity.

        To grant Trump any credit for raising what might be a legitimate larger issue in this case is to give the guy one helluva benefit of the doubt. But I do agree with you that even unintentionally, he tends to tap into an undercurrent of resentment and anger, some of it legitimate and some of it not, which has gotten him this far. It’s gonna be a super interesting general election. I can’t see how Trump won’t implode under the pressure, but he’s proven me and lot of other people wrong so far, so who knows. Or rather, his supporters have proven me wrong. Trump has acted exactly as expected. And that is what’s really interesting.

        Liked by 1 person

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