Donald Trump has continued to assert that Judge Gonzalo Curiel isn’t fit to preside over a lawsuit against the GOP front-runner’s Trump University, claiming that because he has Mexican heritage, he can’t fairly rule in the case. Trump has come under fire for the remark from pretty much everyone, from the media to fellow Republicans, but he insists it’s not racist to say that Curiel is biased against him because of Trump’s plan to build a wall along the Mexican border. If Trump is so sure that Curiel can’t do his job properly due to a conflict of interest, and if he’s so confident in his own reasoning on the matter, why isn’t he doing anything about it?
If Trump really wanted Curiel to recuse himself from the case, he could file a motion requesting recusal. But he hasn’t done that yet, and do you know why? Probably because his lawyers know they could get in a lot of trouble if they do. As my colleague Elura Nanos wrote, a lawyer who files a frivolous motion can face sanctions, like when attorneys moved for recusal against Judge Denny Chin because of his ethnicity. Those lawyers were removed from the case and could never appear in his court again. While 28 U.S. Code § 455 says recusal is appropriate when a judge’s “impartiality might reasonably be questioned,” ethnicity is not reasonable grounds for questioning whether someone can do their job.
In addition, recent history indicates that they wouldn’t be successful anyway. When California’s Proposition 8, which was against gay marriage, was deemed unconstitutional by a gay judge, supporters of the proposition argued that he should have recused himself. U.S. District Judge James Ware said that “The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association … has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself.” A gay judge can preside over a gay marriage case, and a judge from Indiana who has Mexican family members can hear a case that has absolutely nothing to do with Mexico. Surely, Trump’s lawyers are aware of this case law.
LawNewz.com reached out to Trump’s camp, asking if they plan on filing a motion for recusal, but they have not gotten back to us. Don’t bet on it. If Trump does move for Judge Curiel to take himself off the case, it would likely be for show, just so he can complain when he gets turned down. The man is facing allegations of shady business practices and claims that his “university” bilked people out of money they couldn’t afford to lose, even encouraging them to go into debt. So Trump is telling the world — and most importantly, voters — that if the case doesn’t go his way, we shouldn’t pay attention to it. Clearly, Trump’s cries of bias have nothing to do with a court of law and they are all about trying to save face in the court of public opinion.