Judicial Bias

Justice Anthony Kennedy hit the nail on the head with a ten-pound gavel on Thursday of last week. Writing for the majority opinion in Williams v. Pennsylvania, Kennedy said that “Bias is easy to attribute to others and difficult to discern in oneself.” Perhaps this is why it is often so easy for losing parties to cry judicial bias. Case in point: Donald Trump attacking a federal judge.

In District of Columbia Courts, Canon 2 of the Code of Judicial Conduct instructs that judges perform the duties of their offices “impartially, competently, and diligently.” This legal premise is one of the foundation principles of the judiciary, not only in the District, but in courtrooms around the country. The same standard also applies in federal courts where Trump has alleged bias based on U.S. District Judge Gonzalo P. Curiel’s Mexican-American heritage.

His current complaint is not the first time Trump has asserted judicial bias. In 2008, lawyers for Trump tried to remove an African-American judge in a New York suit. Later, his attorneys sought to disqualify a female judge. However, removing a judge because of race or sex is not justified — even if, as Trump claims, he or she issues bad decisions.

The very nature of a lawsuit is controversy. Inevitably, there will always be a losing party. That a party may lose a suit does not demonstrate either lack of impartiality or bad decision-making on the part of the judge. Not every ruling will be agreeable to all parties. If every order was gladly accepted by both the plaintiff and defendant, likely there would be no suit to begin with.

Seeking recusal for judicial bias is a rare and extreme request that is granted even more sparingly. Generally, to justify recusal, a party must prove that a judge cannot act impartially. This may sometimes be demonstrated by evidence that the judge has bias or prejudice concerning an attorney, personal knowledge of the facts, a relationship with counsel or a party, or a financial interest in the suit.

When claims of judicial bias arise, it is most often because a judge has some personal or pecuniary financial interest in a case. Trump’s claim that Curiel — a Chicago-born U.S. citizen — is biased and issues bad decisions because of his heritage is far-reaching and without any sound legal basis. Even so, when a claim of bias is raised, the error should be addressed by counsel, not by a party to the proceedings.

As with any perceived or actual legal error, it is common practice that an objection be made at the earliest possible time. This puts the court and parties on notice and it may preserve the claim in the event of appellate review. For those who lose a lawsuit and believe that they have been treated unfairly because a judge has had some personal interest or shown some form of favoritism, appeals are the appropriate legal remedy — not the media.

The courts are not the reality-TV environment that Trump is used to. He cannot merely point a finger at Judge Curiel and issue the infamous, “You’re fired.” More so, as a presidential candidate who may come to reside in the District, Trump needs to grasp the concept of judicial bias as being fact specific and not a generalized race or gender issue. Like a judge, he may someday have to uphold the Constitution, not ignore it.

Bucks County Defense Attorney Amato Sanita commented, “Judicial bias because of a judge’s personal upbringing and nationality is not an appropriate objection that should be made in order to force a judge’s recusal. In fact, unless a direct reason exists for a judge to recuse him- or herself from a particular case, making an objection to a particular judge because of the judge’s nationality is not appropriate in any form. The courts should not be manipulated because of a person’s skin color or background.”

Judicial bias must be proven. If the only evidence that Donald Trump offers vis-a-vis Judge Curiel is ancestry, he has proven that Justice Kennedy’s statement is correct: Judge Curiel is an easy target for a sore loser blinded by his own bias.

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