No, Judge Curiel Has Not Demonstrated Bias Against Donald Trump In His Rulings

Donald Trump has claimed that the Judge presiding over the Trump University lawsuits is biased against him, but there's absolutely no evidence to support this argument.

Donald Trump Trump University

At the heart of the latest controversy surrounding Donald Trump’s complaints about Federal District Court Judge Gonazlo Curiel is the claim that, because of Trump’s position on issues such as immigration, Judge Curiel, who is of Mexican-American heritage to the extent that his parents were born in Mexico and immigrated to the United States, has demonstrated bias against Trump in his rulings due to Curiel’s Mexican heritage and Trump’s position on immigration. To Trump’s mind, the fact that Curiel is of Mexican-American heritage and is a member of a Latino Bar Association means that he is inherently biased against Trump and explains why he hasn’t ruled the way Trump would prefer in the Trump University cases that he is currently presiding over. Importantly, neither Trump nor his surrogates and supporters have been able to point to any specific ruling that Judge Curiel has made that displays evidence of that bias. Trump has also failed to directly respond to questions asking why he hasn’t instructed his attorneys to file a motion to compel Judge Curiel to recuse himself from the case. Instead, Trump spent the last week continuing the attacks even as it became apparent that it was based in nothing other than assumptions that can only be called racist on Trump’s part that have put Republicans as a whole on the spot and led many of them to renounce him and even, in some cases, withdraw their support.

Somewhat lost in all of this reporting about Trump’s remarks, though, is the question of whether there’s any merit at all to Trump’s assertion that Judge Curiel has demonstrated bias against Trump or his business entities and whether or not there is any evidence of such bias in any of Judge Curiel’s rulings. In an effort to answer those questions, and others that have arisen regarding the Trump University cases, Ken White at Popehat posted a “Lawsplainer” that does an excellent job of explaining the cases currently pending, which consist of two separate class action lawsuits that assert different claims under California and Federal law, and walks through what we know about the rulings in the two cases. For example, in connection with his ruling on Summary Judgment in one of the two cases, which is one issue that Trump has briefly mentioned during his many anti-Curiel rants and where Curiel ruled in part for the Plaintiffs and in part for the Defendants, White puts it this way:

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.

(…)

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.

(…)

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.

On the ultimate question, White is, sadly, largely correct:

So does the record support that Judge Curiel is in the tank for the plaintiffs and outrageously biased against Trump?

No. I don’t think it does. However, to reach that conclusion, you need to actually read stuff and have a vague idea of what you’re talking about, so I don’t expect it to take hold, frankly.

White is largely correct, of course. The majority of Americans will form their opinions regarding this entire controversy based on their opinion of Donald Trump. For those who support him, the mere fact that he is making the claim that Judge Curiel has been biased against him is sufficient reason for them to believe the claim, and it quickly becomes clear when talking to such people that they have no independent factual basis upon which to make that determination and haven’t consulted any analysis similar to White’s to support their belief. For those who oppose Trump, it’s sufficient that he chose to make his dispute with Curiel about race to reject his argument that he’s being treated unfairly. As I said, there’s no question that his assertion that Curiel’s ethnic background is the influence behind his rulings, a clear attack on the Judge’s integrity which the rules of judicial ethics prevent him from directly responding to, is racist and that Trump is making the attack racial for specific political reasons. That doesn’t preclude that possibility, though, that Curiel has made erroneous rulings, which is why it’s a good thing that someone has actually taken the time to look at the rulings to try to determine the truth.

Along similar lines, Plaintiff’s attorney Maxwell Kennerly has looked at the major substantive rulings in the most mature of the two Trump University class action cases and examines the claims, defenses, motions, and orders in detail. In conclusion, Kennerly says this on the issue of Judge Curiel’s rulings and any evidence of bias:

The punchline is quite simple:

  • On the issues where Judge Curiel had discretion, he generally ruled against the plaintiffs, including refusing their request to amend the complaint and extend discovery, and, most recently, rejecting their trial plan.
  • On the issues where Judge Curiel had to rule on disputed legal concepts, he generally ruled against the plaintiffs. Trump’s own lawyers said the class action certification was “narrow,” and they’re correct. The plaintiffs sought a nationwide class action over Trump University’s deceptive “upsell” practices, but Judge Curiel refused to certify the claims for plaintiffs from 47 states, and, for the three states remaining, trimmed down the claims to just three “core” misrepresentations.
  • There’s only really one issue where Judge Curiel truly sided with the plaintiffs, and that was over the appropriate proof of damages. Trump argued that the plaintiffs had to prove the “difference in value” between what they received and what they were promised, and the plaintiffs argued they were entitled to a full refund because they received nothing of value. Judge Curiel’s decision was hardly unusual: to support it, he relied on a Ninth Circuit case (that’s the appellate court which will eventually review this case) and a District Court case that assessed damages in a case involving a deceptive business coaching scam.

Or, as he puts it in his conclusion, “Judge Curiel is doing his job like a normal judge, issuing rulings consistent with the case law. But you already knew that.”

In other words, there is no evidence that Judge Curiel has been biased against Trump in any of his rulings in these cases, that his rulings have been unusual, or that they have been contrary to existing law or precedent. Indeed, Judge Curiel’s most recent action in the case is arguably very favorable to Trump. While the Plaintiffs were seeking to go to trial in July, just as the political conventions were taking place and the General Election Scheduling matters such as this are typically a matter entirely within the discretion of the trial judge. If he were biased against Trump, Curiel could have agreed with the Plaintiffs’ request for a July trial date, or set the trial for September or October during the height of the campaign. Instead, he has bumped it to after the election. This obviously helps Trump since it removes the possibility of daily news reports about a potentially embarrassing consumer fraud trial disrupting Trump’s campaign. That sure doesn’t sound like a biased Judge to me.

FILED UNDER: Campaign 2016, Donald Trump, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Mu says:

    Major gnashing and howling today with the Trumpistas, as it turns out the whole “the judge’s former lawfirm is a major Clinton supporter” took a hit when it turns out so is Trump’s own lawyer, and his law firm.

  2. Jack says:

    Instead, Trump spent the last week continuing the attacks even as it became apparent that it was based in nothing other than assumptions that can only be called racist on Trump’s part that have put Republicans as a whole on the spot and led many of them to renounce him and even, in some cases, withdraw their support.

    In the words of Ann Coulter, “Proving to voters that elected Republicans are pathetic, impotent media suck-ups is, surprisingly, not hurting Trump.”

  3. Scott says:

    It is interesting that in those interviews where Trump is proclaiming that the Judge has treated him “unfairly, very unfairly”, that there is no follow-on question on what, precisely, what Trump considered unfair. Yet another journalistic failure. I see this as Trump “working the ref” and creating the conditions where he can deny responsibility when he loses.

  4. An Interested Party says:

    In the words of Ann Coulter, “Proving to voters that elected Republicans are pathetic, impotent media suck-ups is, surprisingly, not hurting Trump.”

    Yes indeed…it would be much better for Republicans to agree with Trump’s racism…certainly that would help them with their base…

  5. DrDaveT says:

    I’m still trying to get a handle on the timing here. Judge Curiel was appointed to the case before Trump started making inflammatory anti-Mexican remarks on the campaign trail, no? In which case, any animosity that may have generated toward Trump by Curiel is no different than if Trump had been rude or insulting toward Curiel in the courtroom. It should be obvious to everyone that insulting the judge who is handling your case should not get you a new judge.

  6. Joe says:

    There is very little less credible to a practicing lawyer than someone complaining that judge behaved unfairly/badly/stupidly/weakly by denying summary judgment. I started my career clerking for a trial judge and learned from the inside that there is very little upside for a judge in granting a summary judgment. You can be reversed for an improper grant, but a denial just moves on to trial (or settlement) where the jury will decide. Moreover, summary judgment is purposely a very tough standard – NO dispute of material fact. A denial will almost never be reviewed.

    I agree with Scott that Trump is working the refs. He is, nevertheless, a big cry baby, particularly where Judge Curiel has clearly given Trump’s lawyers some significant wins and Trump can only complain because the Judge didn’t just give Trump an outright pass.

  7. Hal_10000 says:

    This has never really been about Curiel’s rulings. Or his race, really. This is about Trump trying to delegitimize the case. He knows Trump University could be a big liability (financially and politically) so he’s trying to game it.

    If he wins, he wins and will claim vindication.

    If he loses, he’ll say the judge was biased and again claim vindication.

    So heads Trump wins, tails we lose. Sliming Judge Curiel, undermining faith in the judiciary, attacking the rule of law, poking racial animosity — this is all just collateral damage to Trump’s ambition. He doesn’t care.

    This should serve as a warning to GOPers supporting Trump: he will throw them under the bus the second it benefits him and not even think about it.

  8. Andre Kenji says:

    Trump University is a big liability because that´s not the kind of business that billionaires spent their time on. There is no Zuckerberg or Bill Gates University. That´s petty business. Billionaires are either spending their time spending money(Whether with philanthropy or with huge yachts) or running large 500 S&P companies.

    Warren Buffet could fill stadiums lecturing on businesses, but he does not have time for that.

    That´s petty even for multimillionaires standards.

    Every minute that NBC Nightly News or CBS Evening News spent with that is destroying the image of the famous guy famous for being rich.

    Trump acted more on desperation than racism.

  9. CSK says:

    @Hal_10000:

    This case is an object lesson in how Trump would behave as president. Notice how he picked the one line of attack that would resonate most with his fans: attacking the judge for being a Mexican, and therefore invariably biased. He really is an evil swine, in addition to being a cosmically ignorant buffoon.

    His followers are perfectly happy for him to use these tactics; they see him as not just one of them–or first among equals, I suppose–but as their champion. It doesn’t occur to them that he could turn against them.

  10. C. Clavin says:

    there is no evidence that Judge Curiel has been biased against Trump

    Of course not.
    There is no evidence that Jenos and JKB are the victims of racism, either…but that doesn’t matter. They certainly have convinced themselves that they are.
    Trumps entire campaign is based upon the incredibly fallacious idea that white males are somehow being discriminated against.
    It’s ridiculous. But there are just enough stupid white men to make Trump a serious threat to the future of the Republic.

  11. Facebones says:

    @Andre Kenji:

    Trump University is a big liability because that´s not the kind of business that billionaires spent their time on.

    Right? Same with the steaks and the water. All of that was penny ante grift. How much money would Trump get out of Trump U? A couple million? Isn’t that supposed to be chump change to a mega rich guy like him?

    Oh right, but he’s not really a billionaire. In the words of a memorable article about him, he’s a clown living on credit.

  12. Jenos Idanian says:

    Trump is a tool. But he’s proving to be a useful tool in several ways.

    The judge in question is a member of not one, but two racially oriented and racially exclusive organizations, and both organizations are on record as fiercely opposing Trump. Further, one of them — La Raza — has been involved in violence against Trump supporters.

  13. wr says:

    @Jenos Idanian: Please supply any evidence that this judge has ever slanted any ruling because of his own personal political beliefs.

    And if you can’t do that, shut the hell up.

  14. C. Clavin says:

    @Jenos Idanian:
    No doubt you are the dumbest m’fwcker on the inter-tubes.
    Any idea how many organizations there are named La Raza?
    Of course not.
    I know this won’t convince you…you are too imbecilic for that. Far too big a racist. Far too ignorant.
    But others may enjoy knowing something.
    http://www.politifact.com/truth-o-meter/statements/2016/jun/07/donald-trump/trump-wrongly-casts-california-lawyers-group-stron/

  15. Andre Kenji says:

    La Raza does not necessarily mean “race”. It´s also used to denote strongness. Ford sells it´s Ranger line with the slogan “Raza Fuerte” in Argentina – that does not mean that these are racist trucks.

    People that does not speak Spanish should not be commenting on that.

  16. Andre Kenji says:

    La Raza does not necessarily mean “race”. It´s also used to denote strongness. Ford sells it´s Ranger line with the slogan “Raza Fuerte” in Argentina – that does not mean that these are racist trucks.

    People that does not speak Spanish should not be commenting on that.

  17. Jenos Idanian says:

    @wr: You can’t deal with what I actually say, so you make up shit and accuse me of saying it. Sorry, ain’t gonna play.

    I said the judge belonged to two racially oriented and two racially exclusive groups. I didn’t say that that influenced his judgment, merely that Trump — in his role as a “useful tool” — has brought that to the public notice.

    When you deal with what I actually say, and not what you wish I’d say so you’d be able to play Liberal Hero and slay the evil dragon, I’ll consider engaging you.

    But not very seriously.

  18. C. Clavin says:

    @Jenos Idanian:

    two racially exclusive groups

    That membership is now about half Latino, Murillo said

    Can you explain how an organization that is about half Latino is racially exclusive?
    Of course you cannot.
    With every comment you get dumber.
    Your mother, in whose basement you live, must be proud.

  19. An Interested Party says:

    Trump is a tool.

    Actually, the real tools are those fools who are allowing themselves to be bamboozled by this conman…people like Scott Adams as well as a few commenters around here…

  20. wr says:

    @Jenos Idanian: ” I didn’t say that that influenced his judgment, merely that Trump — in his role as a “useful tool” — has brought that to the public notice.”

    And what possible difference does it make what clubs this judge belongs to unless they impact his rulings? Why none. None at all. So the only way it could be “useful” for Trump to publicize this is if you believe that he’s a nasty racist hammering the white guy.

    I do understand you’re stupid, but just because you don’t spell out the meanings of every slimy insinuation you ooze here doesn’t mean that everyone else is incapable of picking them up.

    And to then play the “but those weren’t my exact words so you can’t criticize what I obviously meant by them” is to argue like a four year old.

  21. Gavrilo says:

    Remember kids, it’s totally cool to argue that Alito, Roberts, Kennedy, Thomas, and the late Scalia were incapable of rendering a fair decision because they’re all Catholics. (See: Burwell v. Hobby Lobby Stores.) But, it’s totally racist to argue that Gonzalo Curiel can’t render a fair decision because he’s Mexican.

  22. Just 'nutha ig'rant cracker says:

    @Gavrilo: “Remember kids, it’s totally cool to argue that Alito, Roberts, Kennedy, Thomas, and the late Scalia were incapable of rendering a fair decision because they’re all Catholics failed to do so. (See: Burwell v. Hobby Lobby Stores.) But, it’s totally racist to argue that Gonzalo Curiel can’t render a fair decision because he’s Mexican.”

    Fixed that for you. No charge.

  23. Scott says:

    @Gavrilo: So which position are you arguing for?

  24. Tony W says:

    @Gavrilo: Catholic is a stupid life choice. Heritage is unchanging

  25. Neil Hudelson says:

    @Andre Kenji:

    So…you’re telling me this ISN’T racist pizza??

    http://www.larazapizza.com/

  26. C. Clavin says:

    @Gavrilo: @Gavrilo:

    But, it’s totally racist to argue that Gonzalo Curiel can’t render a fair decision because he’s Mexican.

    Well…yeah…because he’s American, born in Indiana, you stupid SOB.

  27. C. Clavin says:

    @Neil Hudelson:
    Is that one of those racially exclusive organizations that Jenos was talking about???

  28. Steve V says:

    Is there any evidence Trump knew about these memberships when he started beefing with Curiel? I don’t think there is. They seem to have beer brought up by others as some kind of ex post justification for Trump slamming him for being “Mexican.”

  29. Andre Kenji says:

    There is the idiotic meme on the Right correlating the word “la Raza” with racism. They think that “Raza” is nothing more than a synonym to the race. They are only pointing out to their ignorance of the Spanish Language.

    I remember Paul Gottfried mocking Neoconservative Intelectuals, saying that they don´t any language other than English.

  30. Dazedandconfused says:

    @Joe:

    What’s your opinion on what Trump is doing is prosecutable as obstruction of justice? IMO it most definitely is.

  31. Joe says:

    @Dazedandconfused: I don’t practice criminal law, but I think, short of threatening the life of a sitting President, a candidate for office can say damn near anything and stand behind the First Amendment. I think stupid gets to talk. I leave it to the Marshal service to keep Judge Curiel physically safe. Beyond that, I hope Judge Curiel is one of those many judges who understand that being criticized by cry baby litigants is part of the territory, even if that cry baby is running for President.

    I have agreed elsewhere in this string that I think Trump is trying to play the refs or manage expectations by creating an excuse if he loses. But that is not obstructing justice. It’s just playing the rubes in his fan club.

  32. MarkedMan says:

    Re: this imagined piling on to the Catholic judges because people think Church teaching would influence their decision.I can’t speak for what non-Catholics may believe about it but I don’t think there are too many Catholics that would think church teaching would influence a birth control decision in any way. The pope and a few of the other men in dresses might have strong opinions about it, but I’ve literally never met a lay Catholic that has ever even indicated any sort of agreement with it. In a half century the only comments I’ve head heard from the laity are disparaging ones, and those rarely, because mostly people just ignore it. And I grew up in a highly diverse south side Chicago neighborhood. We had Irish Catholics, Italian Catholics and Polish Catholics. And spent 12 years in Catholic school to boot.

  33. Dazedandconfused says:

    @Joe:

    Seemed to me that organizing a public campaign against the judge by one of the parties of the trial could be labeled as an effort to intimidate him.

  34. Jenos Idanian says:

    In yet another example of my “Trump as useful tool” thesis (where, without endorsing Trump, I note how his actions serve incredibly useful purposes), we have how the Trump University mess has brought the actions of Laureate Education, a for-profit college company. (Translation: diploma mill.)

    In 2015, Bill Clinton resigned as “honorary chancellor,” a gig that had earned him over $16 over the previous five years. And during that time, the State Department funneled over $55 million to Laureate’s founder and chairman.

    So, once agian, thanks, Donald!

  35. KM says:

    @Jenos:

    Bill’s not Hillary, Jenos.

    How many times do we keep having to say this: the woman is running for President in this, not the man. One is responsible for one’s own actions. Honestly, there’s enough issues with her that it’s just sad you try to pin other people’s on too.

  36. Grumpy Realist says:

    @KM: Jenos hasn’t yet discovered that couverture isn’t a part of US law anymore.

    (jenos, Why don’t you argue that Hillary isn’t qualified to be a candidate for POTUS because she is “no man”? That seems to be the level you’re working at.)