Amid all the brouhaha about what Trump said comes a question about racism in the courts.
Three days before Trump accused the judge of prejudice, the New York Times reported:
The Supreme Court ruled on Monday that prosecutors in Georgia violated the Constitution by striking every black prospective juror in a death penalty case against a black defendant. The vote was 7 to 1, with Justice Clarence Thomas dissenting.
The case, Foster v. Chatman, No. 14-8349, arose from the 1987 trial of Timothy T. Foster, an African-American facing the death penalty for killing Queen Madge White, an elderly white woman, when he was 18.
In notes that did not surface until decades later, prosecutors marked the names of black prospective jurors with a B and highlighted those names in green. They circled the word “black” where potential jurors had noted their race on questionnaires.
They ranked those prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time. In the end, prosecutors struck all four black potential jurors.
After Mr. Foster was convicted, Stephen Lanier, the lead prosecutor, urged the all-white jury to impose a death sentence to “deter other people out there in the projects.” The jury did so.Now it should be noted that Justice Thomas, a native of Georgia, deferred to the trial judge's decision on juror selection. However, as much as I admire Justice Thomas for his intellect, intestinal fortitude, and integrity, I would apply to this case the standard of avoiding the appearance of impropriety, which traces to I Thessalonians 5:22: “Abstain from all appearance of evil.” An all-white jury gave the appearance of impropriety in determining the death sentence. No one argues that it got the murder conviction correct.
Which leads to Judge Curiel. Does having him preside over the case give the appearance of impropriety?
Former U.S. attorney general Alberto R. Gonzales argued yes:
An independent judiciary is extremely important. But that value is not the only one in play here. Equally important, if not more important from my perspective as a former judge and U.S. attorney general, is a litigant’s right to a fair trial. The protection of that right is a primary reason why our Constitution provides for an independent judiciary. If judges and the trials over which they preside are not perceived as being impartial, the public will quickly lose confidence in the rule of law upon which our nation is based. For this reason, ethics codes for judges — including the federal code of conduct governing Curiel — require not only that judges actually be impartial, but that they avoid even the “appearance of impropriety.” That appearance typically is measured from the standpoint of a reasonable litigant.Gonzales however argued that Trump cannot dismiss the judge merely because of the judge's lineage. There must be something more, and Gonzales found it:
Curiel is, reportedly, a member of a group called La Raza Lawyers of San Diego. Trump’s aides, meanwhile, have indicated that they believe Curiel is a member of the National Council of La Raza, a vocal advocacy organization that has vigorously condemned Trump and his views on immigration. The two groups are unaffiliated, and Curiel is not a member of NCLR. But Trump may be concerned that the lawyers’ association or its members represent or support the other advocacy organization. Coupled with that question is the fact that in 2014, when he certified the class-action lawsuit against Trump, Curiel appointed the Robbins Geller law firm to represent plaintiffs. Robbins Geller has paid $675,000 in speaking fees since 2009 to Trump’s likely opponent, Hillary Clinton, and to her husband, former president Bill Clinton. Curiel appointed the firm in the case before Trump entered the presidential race, but again, it might not be unreasonable for a defendant in Trump’s position to wonder who Curiel favors in the presidential election. These circumstances, while not necessarily conclusive, at least raise a legitimate question to be considered. Regardless of the way Trump has gone about raising his concerns over whether he’s getting a fair trial, none of us should dismiss those concerns out of hand without carefully examining how a defendant in his position might perceive them — and we certainly should not dismiss them for partisan political reasons.Obama appointed Curiel. One factor was Curiel's parents. If we are going to play the game that ethnicity matters in appointing people to the federal judiciary, then we cannot ignore complaints about the appearance of impropriety from that ethnicity, or through usage "race."
We also cannot overlook the judge's connection to Crooked Clinton.
Is Trump right? I have no idea. But certainly he has every right to raise the issue. If that makes a few conservatives uncomfortable, too damned bad.