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Judicial recusal 101 and Presidential politics 2016

Posted by on June 12, 2016 in In The News - Comments Off on Judicial recusal 101 and Presidential politics 2016
Judge Gonzalo Curiel was accused by Donald Trump of being biased against him because of the judge's heritage in an ongoing Trump University legal case.

Judge Gonzalo Curiel was accused by Donald Trump of being biased against him because of the judge’s heritage in an ongoing Trump University legal case.

Judicial disqualification, or recusal, occurs when a judge abstains from participating in a legal proceeding due to a conflict of interest. By recusing themselves, judges improve the procedural fairness of the legal proceeding, producing decisions that are less likely to be questioned. In district and appellate courts, either party can file a motion before litigation begins, arguing that the judge of the proceedings has a personal bias or prejudice in favor of one side. In the Supreme Court, however, it is largely up to the justices to determine when the standards of recusal have been met in a particular case. Universal grounds for recusal often include when a judge is related to a party or attorney, when they have personal knowledge about the facts of the case, when they have a personal or financial interest in the outcome, when it can appear that they cannot act impartially, or when an appellate judge previously handed the case as a trial court judge. In recent years, judicial recusals have become much more common. In her first year on the bench following her 2010 confirmation, Associate Justice Elena Kagan recused herself from twenty-eight of the seventy-eight cases heard by the Supreme Court due to her past work as United States Solicitor General. She continues to recuse herself from cases six years later, including the pending Fisher v University of Texas. Especially in the Supreme Court, recusals are significant because they can alter a case’s decision. Although it is important to have unbiased judges and justices, an increased rate of recusals may create the fear of a slippery slope where any aspect of a judge’s personal life could be analyzed as grounds for recusal. In a recent example, in a federal case regarding accusations of fraud at Trump University, Donald Trump is calling for Judge Gonzalo Curiel to recuse himself due to his ethnicity. Trump claims that the Indiana-born judge, whose parents are Mexican immigrants, is biased against him because of Trump’s proposals on border security. Trump’s reasoning does not sufficiently address why Curiel would be unable to fairly serve as a judge in the case. Republican leaders, including House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell, have come out strongly against these remarks. As a reasoning for recusal, Trump explained, “he’s a Mexican. We’re building a wall between here and Mexico.” It does not seem that Trump’s allegations of judicial bias meet the standards for judicial recusal. Additionally, if concerned about judicial bias, Trump should have called for recusal at the beginning of the case, rather than after several adverse rulings.  Trump shared, “The judge was appointed by Barack Obama… I mean frankly he should recuse himself because he’s giving us ruling after ruling after ruling, negative, negative, negative.” Speaking to the American Constitution Society, Senator Elizabeth Warren warned, “We are losing the fight over whether our courts will remain a neutral forum.”  It will be interesting to see if Donald Trump’s comments will affect the Trump University legal proceedings, and if the threats to an independent judiciary will continue to play a role in the 2016 Presidential Elections.

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