Since we’re talking about this again, instead of Donald’s latest bullshit about the Orlando shooting, I want to repost the stuff from Popehat.com , where Ken White, Lawsplainer, explains why Judge Curiel’s rulings in the Trump University case do appear to be unusual or biased -https://popehat.com/2016/06/06/lawsplainer-when-must-federal-judges-recuse-themselves-anyway/
So does the summary judgment order suggest Judge Curiel is a partisan biased against Trump?
No.
Look, in the modern political climate I could burn ten thousand words on this and people who support Trump wouldn’t buy it and people who oppose Trump would buy it even if the only word was “dildo.” But in my judgment, Judge Curiel’s partial denial of the summary judgment is pretty straightforward and well within the range of normal federal judicial decisions on summary judgment.
First, keep in mind Judge Curiel hasn’t given plaintiffs everything they wanted — not by a long shot. The point of a class action is to get your individual plaintiffs to represent a huge class of people, so you can prove their individual cases but get damages to cover hundreds or thousands or tens of thousands of people. It’s a huge force multiplier and carries the potential for ruinously gigantic damages. Judge Curiel didn’t certify the class on all the claims that plaintiffs wanted. That is, as to some of their claims, he said they could only seek their own personal damages, not damages on behalf of everyone who went to Trump University. For instance, he allowed the plaintiffs to represent classes under state consumer laws, but not under state common law claims like breach of contract and fraud.
Later, on Trump’s motion, Judge Curiel decertified the class in part. That means that he granted Trump’s motion to take away part of their class representative status and modified how they must prove their cases. Specifically, Judge Curiel ordered that (1) the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed (which defendants generally like because it keeps plaintiffs’ damages sob stories out of trial and keeps the jury from being prejudiced by big damages numbers or by evidence of how much money the defendants have); (2) rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get.
On summary judgment, he gave the plaintiffs much of what they wanted — he knocked out the demands for injunctions, but those are insignificant compared to damages. But his analysis of the evidence was pretty straightforward. Judges aren’t supposed to grant summary judgment if evidence is weak. They’re only supposed to grant if if there’s no dispute of fact. Here, the plaintiffs offered evidence which, if believed, would show that Trump was responsible for false statements and the students relied on those statements. I don’t think it’s a particularly notable decision.
And also that expecting a judge to be biased and therefore required to recuse himself is crude and unusual behavior in American Courts of Law -https://popehat.com/2016/06/06/lawsplainer-when-must-federal-judges-recuse-themselves-anyway/
That “might reasonably be questioned” is awfully broad. Doesn’t that mean Trump is right?
Only if you pretend the last century of law didn’t happen. Federal courts have ruled many, many times about what is a “reasonable” question and what isn’t. “Reasonableness” is defined in the context of some fundamental assumptions about the legal system — especially that judges generally won’t act like sectarians based on their race and religion. Moreover, courts recognize that all judges had lives before becoming judges, and those lives necessarily involved a wide range of affiliations. Plus, the test is based on the perception of a reasonable person, a “well-informed, thoughtful, and objective observer, rather than the hypersensitive, cynical, and suspicious person.” So. Not a Trumpalo, not a Clintonista.
So Trump’s argument that a “Mexican” can’t hear is case is bogus?
Beyond the shadow of a doubt based on a century of law. Many courts have considered and rejected the argument that a judge of a particular ethnicity, gender, or religion is inherently biased because of the nature of the case. In fact, the argument has been so repeatedly and thoroughly rejected that it’s sanctionable to make it.
Both articles are entirely worth reading in full, for everyone wanting information on Trump’s bogus accusations.
No, there’s another way it would be comparable and that would be in the way I obviously meant it, which is that it’s certainly possible for judges to have biases and conflicts of interest in certain cases which reflect neither on their so-called race nor on their ability to function perfectly well when adjudicating other cases. I presume we’re all aware of the word “recusal”. Why do you think such a practice exists if not to obviate judicial bias?
Starving_Artist:
No, there’s another way it would be comparable and that would be in the way I obviously meant it, which is that it’s certainly possible for judges to have biases and conflicts of interest in certain cases which reflect neither on their so-called race nor on their ability to function perfectly well when adjudicating other cases. I presume we’re all aware of the word “recusal”. Why do you think such a practice exists if not to obviate judicial bias?
Can you cite that you’re required to recuse yourself because of your heritage?
Starving_Artist:
No, there’s another way it would be comparable and that would be in the way I obviously meant it, which is that it’s certainly possible for judges to have biases and conflicts of interest in certain cases which reflect neither on their so-called race nor on their ability to function perfectly well when adjudicating other cases. I presume we’re all aware of the word “recusal”. Why do you think such a practice exists if not to obviate judicial bias?
You should let Trump’s lawyers know they can ask to have the judge recused. I’ll bet they didn’t know.
iiandyiiii:
It doesn’t matter if it’s solely or partially – saying that his ethnic heritage has anything whatsoever to do with his fitness to be judge, for this case or any other, is (like Paul Ryan says) the very textbook definition of racism.
Try these on for size – ‘I don’t think Dr. Johnson will be a good surgeon – he graduated 13th in his class, and he’s black’; ‘Attorney O’Brien probably won’t be a good lawyer to defend me – he lost his last case, and he’s Irish’… these are racist sentiments.
A judge forced to recuse due to ethnicity by the Obama administration? That textbook racist!
The Atlantic covers news, politics, culture, technology, health, and more, through its articles, podcasts, videos, and flagship magazine.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
You were saying?
JohnT
June 14, 2016, 2:06am
1267
Starving Artist
For the sake of argument, I concede your points. For this post, I will agree that the judges ethnicity and admission to La Raza can make a case of bias.
However, a few questions:
Trump’s lead attorney on this case is an active donor to Hillary Rodham Clinton, his latest donation coming in January, 2016, a full two+ months after he was hired by Trump, a full 7 months since Trump announced his category.
In your opinion, is there a risk of Trump’s attorney performing actions detrimental to Trump based on his active support of Hillary’s campaign ?
In your opinion, is this risk higher or lower than the risk of the Judge performing similar acts?
If Trump loses this case, based upon his argument that his Presidential campaign has tainted the process, in your opinion, with whom does he have a greater claim of prejudicial action: The judge, or the attorney?
If, in your opinion, the judge is more liable than the attorney… why?
If, in your opinion, the attorney is more liable than the judge… then how can Trump make this argument against this judge with this attorney? Doesn’t it prove the lie to his claim?
If Trump’s legal team had genuine issues with Curiel that could lead to a recusal it should have been dealt with as it normally is: By a legal motion for recusal, there’s an established procedure for that. And as it stand’s now Trump’s team hasn’t even bothered to file one, and it seems unlikely they will:
Trump’s legal team knows it’s bullshit and they’d be censured if they actually filed it. That puts an end to that, can we move on to the other ways in which Trump is full of shit now?
Thank you. And will you now also concede that Trump’s concerns about this possible bias has a foundational basis and does not in fact constitute racism on Trump’s part?
I’ll be happy to answer your questions, but first I’d like to have an answer to this.
JohnT
June 14, 2016, 2:54am
1270
Naw, under the time honored rule, “I asked first.”
If you don’t want to answer the questions, that’s fine, but I don’t accept a “test” from you in order to get you to answer them.
DSeid
June 14, 2016, 2:55am
1271
Do you seriously not even understand the meaning of “For the sake of argument …”?
coremelt:
If Trump’s legal team had genuine issues with Curiel that could lead to a recusal it should have been dealt with as it normally is: By a legal motion for recusal, there’s an established procedure for that. And as it stand’s now Trump’s team hasn’t even bothered to file one, and it seems unlikely they will:Will Trump’s Lawyers Actually Seek to Recuse Judge Curiel? Don’t Bet On It | Law & Crime
Trump’s legal team knows it’s bullshit and they’d be censured if they actually filed it. That puts an end to that…
Uh, no it doesn’t. Trump feels that inflammatory information contained in the lawsuit was wrongfully allowed to be made public by Judge Curiel, and so he feels the need to address it publicly in order to defend himself from the damaging impressions these public revelations create.
JohnT:
Naw, under the time honored rule, “I asked first.”
If you don’t want to answer the questions, that’s fine, but I don’t accept a “test” from you in order to get you to answer them.
What I asked for wasn’t a test. It was asked because your answer would have had some bearing on my answers.
Yep. I also seriously understand the meaning of “For this post…”.
What I asked for was an expansion on the concessions JohnT had agreed to make in that post. Surely this point isn’t all that abstruse.
JohnT
June 14, 2016, 3:16am
1277
Presume I answered both ways and answer my questions twice. Easy-peasy.
Too late. Someone registered the domain in Feb 2016. Also someone is using @OrangeHitler as their Twitter handle.
JohnT
June 14, 2016, 3:22am
1279
I’m going to bed. When I wake up, Starving Artist will have either answered my questions or avoided them. Time will tell…
You say avoided, I say ignored. A halfway concession that doesn’t address the main point isn’t worth the bother.