Tuesday, June 7, 2016

You be the judge

Once, when I was a young attorney handling a big case by myself, I had a hearing in front of the judge on some matter.  Although my presentation was on point and I thought I had the better end of the argument, the decision went the other way, as happens sometimes.  It was disappointing, to be sure.

I mentioned this to my mother soon after getting the bad news, and her reaction was to ask if the judge had been bought off.  I laughed.  "No, that doesn't seem likely," I said.  While I appreciated her being my advocate, the truth is that most judges aren't crooked at all.  They're human beings, and they come to the job with certain prejudices and experiences that creep into the decision-making process.  Almost all judges work hard to look at cases objectively and to render fair decisions.  It's an extremely difficult job that's easy to get wrong.

Knowing what I know about judges, and about federal judges in particular, I was made very uncomfortable with the comments made by GOP presidential nominee Donald Trump about the federal judge who's overseeing a case in which Trump and one of his companies are defendants.  Trump is the defendant in a class-action suit brought on behalf of people who were allegedly defrauded into paying Trump thousands of dollars as part of "Trump University."  Trump University was a seminar series, the stated primary purpose of which was to teach people how to make money by investing in real estate.

Trump's customers, or perhaps the better term is "marks," paid his company between $1500 and $35,000 per course and received...well, not much by way of actionable education.  There is a substantial chance that they were duped by Trump's public persona as a high-flying billionaire who transforms everything he touches into gold (maybe even literally) into thinking that Trump is some sort of financial guru.  It's possible that Trump isn't even actually a billionaire (much less being worth the $10 billion he claims), and his current financial standing, whatever that might be, is primarily the result of being handed his slumlord father's real estate empire and managing not to bungle it entirely away over the last 40 years.

I can't imagine paying anyone $35,000 to tell me how to make money (because, among other things, there is a substantial chance that the advice is going to be something like "get people to pay you $35,000 to tell them how to make money"), and I'm not sure how much sympathy I have for people who bought into the Trump myth.  Legally speaking, however, the fact that a fool and his money are soon parted doesn't mean it isn't fraud when you part a fool from his money.

Which brings us to this class-action case in California.  The judge in that case, Gonzalo Curiel, recently ruled that the case could go forward to trial (and will sometime later this year, after the election).  Procedurally, this was simply the denial of a motion for summary judgment.  Civil cases can be ended early, without a trial, if it is clear that one side or the other cannot raise enough of a dispute about the facts to justify putting those facts to a jury.  Juries decide which side's version of the truth is more likely than not and give a verdict for the plaintiff or the defendant.  The judge decided that there was enough meat on the bone, so to speak, to allow the plaintiffs' case to proceed to trial.

By the way, that's a perfectly normal thing to happen.  Summary judgment happens a lot in weak cases, but the defendant asks for summary judgment in almost every case, and it's denied in every case that actually goes to trial.

The disturbing comment on this situation was this:  Trump accused the judge of bias against him because the judge is "Mexican."  This is a superficially attractive argument.  After all, Trump has a long history of outrageous comments about Mexicans in particular.  Early in the campaign, he indirectly accused most Mexican immigrants to this country of being "rapists."  He has made the building of a huge wall along the U.S. border with Mexico--at Mexico's expense, no less--the centerpiece of his campaign.  So you might reasonably expect a Mexican judge to be justifiably biased against Trump.

Here's one problem with that:  Gonzalo Curiel's parents were (legal) Mexican immigrants to this country.  He was born in Indiana.  He is an American. He is not a Mexican.  You might refer to him as Hispanic, or as Latino, or as "having Mexican heritage."  But he is just as much an American as anyone else who was born here.

But that's not even the worst problem with Trump's comment.  Trump's whine about bias is off-putting, and it smacks of sore-loserism.  But when you flip it on its head, it is overtly racist.  What Trump is really saying is that only a white judge is capable of being fair in this case.  After all, the only things we really know about Judge Curiel, from Trump's perspective, are that (a) he's "Mexican" and (b) he made a decision in the case that Trump didn't like.  The implication is that a white judge would've made a different decision because he wouldn't have been biased.

In case you might be thinking that this assessment of Trump's comment is somehow unfair, you should also be aware that Trump later doubled down by saying that he would have similar problems with a Muslim judge.  (Trump has proposed barring Muslims from entering this country--a sort of religious test for immigration and tourism.) Again, the implication is that only a judge that looks like Trump is qualified to decide whether Trump committed fraud or not.

Defendants whine about "unfair" judges all the time—they'll do anything to excuse their misconduct or to justify why they shouldn't really be held to account for what they did.  But the way Trump has chosen to handle this, the point he's decided to make, the hill he's decided to die on, illustrates that he is perfectly comfortable in the clutches of overt racism.  And that's not what we need in the White House.  We can barely stand having it in the country at all.

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