This column first appeared in The American Spectator on June 15.
Groupthink dictates different treatment of “judicial independence.”
Judges usually manage to stay out of the news, but two of them in California have been getting lots of national attention lately: U.S. District Court Judge Gonzalo Curiel in San Diego, and Santa Clara Superior Court Judge Aaron Persky. Both judges have been criticized recently for making bad rulings, but the reaction to this criticism has been quite different. In one case, the commentariat frantically circled the wagons in defense of the judge; in the other, a veritable lynch mob has formed as critics jockey for position to see who can condemn the judge the loudest. Is a double standard at work? Let’s take a look.
Judge Curiel, appointed to the federal bench by President Obama, presides over the Trump University case. When Donald Trump referred to Curiel as a “Mexican” at a campaign rally and accused the judge of making biased rulings against him due to the candidate’s immigration stand, pundits from all points of the political spectrum howled in protest. Trump was denounced as threatening the rule of law, undermining the independence of the judiciary, and exhibiting naked racism. One prominent lawyer even accused Trump’s comments of being “un-American.” Only one eminent legal figure — former U.S. Attorney General Alberto Gonzales — rose to Trump’s defense. Blogs aside, the only national reporter interested in exploring the underlying facts was The American Spectator’s Jeffrey Lord (e.g., here, here, and here).
After many GOP elected officials condemned Trump and threatened to revoke their endorsements, Trump was forced to issue a semi-apology and vowed to not comment on the matter any further.
As it turns out, Curiel had made some highly dubious rulings in the case (such as certifying a routine consumer dispute as a RICO class action, and appointing as class counsel ex-con Bill Lerach’s former law firm, which has paid hundreds of thousands of dollars to Bill and Hillary Clinton), and his professional associations are questionable as well. Curiel is a longstanding member of the San Diego La Raza Lawyers Association, which advocates positions directly contrary to Trump’s immigration platform. Although SDLRLA is apparently not formally affiliated with the notorious National Council of La Raza, it shares the highly-charged name “La Raza” (which translates as “the race”), and that radical group is linked on SDLRLA’s website.
SDLRLA is hardly a benign attorney networking organization. SDLRLA members opposed Proposition 187, the 1994 ballot measure in California that aimed to deny government benefits to illegal aliens. One of the founders of the SDLRLA, Mario Obledo, co-founded the activist Mexican American Legal Defense and Educational Fund. Obledo once stated that anyone who opposed California becoming a Hispanic state “should go back to Europe.” While on the bench, Curiel served on a SDLRLA committee that awarded scholarships to illegal aliens.
Another group Curiel belongs to — as a “life member” — is the Hispanic National Bar Association. HNBA supports amnesty for illegal aliens. Last year, HNBA advocated a boycott of all of Trump’s business ventures, in protest of his statements on immigration. These facts were lightly reported in blogs but never gained traction in the MSM, which was busy attacking Trump for his “intemperate” criticism of Curiel. The ostensibly conservative (but resolutely #NeverTrump) National Review’s Jim Geraghty wrote an article defending Curiel’s record as a judge, surely NR’s first tribute to an Obama appointee.
Trump was universally condemned for his criticism of Curiel, despite facts that arguably created a reasonable basis for questioning Curiel’s impartiality as a judge.
Contrast the situation of Judge Aaron Persky, who is drawing flack for his sentencing of former Stanford swimmer Brock Turner, who was convicted of three felonies involving the sexual assault of an unconscious victim. The sentence, to six months in jail and three years’ probation, was widely criticized as too lenient. A former prosecutor who has served on the bench for 13 years (appointed by Democratic Governor Gray Davis in 2003), Persky now faces a recall campaign led by a Stanford law professor, a complaint filed with the California Commission on Judicial Performance (CJP), and even the refusal of some potential jurors to serve on unrelated cases assigned to him.
Prominent political consultants have joined the recall campaign, which seeks to remove him from the bench next year. According to press reports, 11 state legislators have urged the CJP to investigate and discipline Persky. Santa Clara Superior Court has been flooded with threatening phone calls, including death threats. California Attorney General Kamala Harris has slammed the sentence. An on-line petition calling for Persky’s impeachment has generated over a million signatures. In contrast to the Trump comments, pundits are virtually unanimous in their condemnation of Persky.
While some local lawyers familiar with Persky defend him as “a fair and even-tempered judge,” to my knowledge, no one in the legal community is standing up for Persky on the basis of judicial independence or the rule of law. This is surprising because Persky’s sentence was precisely what the probation report recommended and Turner had no prior criminal record. While the district attorney criticized the sentence as too lenient, he didn’t appeal it. California judges have considerable discretion in sentencing. The attacks on Persky could chill the exercise of discretion by other judges throughout California.
What explains the dramatic difference in the reaction to criticism of these two judges? Campus rape is a highly charged subject, especially in a case involving a star athlete at an elite school. Of course, Trump is a presidential candidate, and his initial comments certainly lacked subtlety. On the other hand, Judge Curiel has life tenure, whereas state court judges in California are politically accountable to the voters, which makes “judicial independence” a bigger issue in Judge Persky’s case.
Ultimately, I think the difference is due to two factors, both political: First, the media and the legal establishment openly despise Trump, and despite Curiel’s cultivation of an ethnic identity, it was considered a serious breach of protocol for Trump to point that out. (Identity politics is a one-way street.) Political correctness makes Trump’s criticism of a Hispanic judge anathema to both Left and Right. Second, the allegation of leniency in rape cases is a feminist issue, owned by the Left, making Persky fair game from liberals’ perspective. Yes, there is a double standard. It’s OK to criticize judges, as long as the judge is arguably guilty of slighting a “sacred cow” in the estimation of the leftists who dominate the press and legal establishment.