Trump, the Judiciary and Identity Politics Making an issue of Judge Curiel’s ethnicity was squalid—and the other side of a coin that liberals have played for years. Michael Mukasey

Posted By on June 10th, 2016

http://www.wsj.com/articles/trump-the-judiciary-and-identity-politics-1465511521

Federal Judge Gonzalo Curiel, who was born in Indiana to parents of Mexican origin and belongs to an association of lawyers of Mexican origin, is sitting on a case in the Southern District of California that charges fraud against Trump University. Donald Trump in recent days has attracted much attention by suggesting that Judge Curiel should be disqualified for bias because the judge’s rulings are adverse to Mr. Trump and because, in campaigning for the presidency, the candidate has criticized Mexicans and proposed building a wall on the southwest U.S. border.

Mr. Trump’s claim against Judge Curiel is both baseless and squalid, but some in the chorus of critics are not themselves entirely without fault.

First, let’s dispose of the recusal question. Two statutes bear on recusal of a federal judge; neither remotely supports Mr. Trump’s argument. One, and part of the other, treat recusal for bias in fact. To justify such a finding, the complainant must show that a judge has a financial interest in a case, or that the judge has a relationship with parties or lawyers in it. Sworn evidence of the judge’s personal bias or prejudice is another justification for recusal. No evidence of such bias—indeed no evidence at all—has been submitted to the court by Mr. Trump or his lawyers.

The remaining provision requires a judge to disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.” The provision doesn’t require a formal motion, but directs the judge to act, if necessary, on his own, as he would if he had a financial interest of which he was aware.

There is case law on what circumstances suggest that a judge’s impartiality “might reasonably be questioned”—the key word of course being “reasonably.” A judge is enjoined to weigh the importance of public confidence in the courts against the distinct possibility that someone questioning his impartiality might simply be seeking to avoid anticipated adverse consequences of his presiding over the case.

That is, parties shouldn’t use recusal as a device to judge-shop. Because the job of a judge is to rule, and rulings necessarily favor one party or the other, adverse rulings—even a disproportionate number—generally are not considered evidence of partiality.

Race, religion and even gender have been used as suggested bases for “reasonably” questioning a judge’s impartiality. Thus black judges, particularly those with professional histories before they took the bench that included civil-rights work, have been asked to recuse themselves in civil-rights cases. A female judge in the Southern District of New York in 1975 was challenged in a sex-discrimination case, as was a Mormon judge in a 1984 case that allegedly involved the “theocratic power structure of Utah.” These challenges were rejected. CONTINUE AT SITE

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