Judge Curiel Doesn’t Need A Defense, But Judge Aaron Persky Does
June 13, 2016 (Mimesis Law) — A young man, who grew up in Indiana, became a United States District Judge after a distinguished career as a prosecutor. I am referring to Gonzalo Paul Curiel who is a United States District Judge for the United States District Court for the Southern District of California.
Donald Trump, while a Presidential candidate, disparaged the judge for his handling of a case seeking a ton of money for an allegedly fraudulent scheme related to “Trump University.” Wikipedia tells us:
Trump repeatedly criticized Curiel in campaign speeches and interviews, calling him a “hater”, saying his rulings have been unfair, and that Curiel “happens to be, we believe, Mexican, which is great. I think that’s fine”, while suggesting that the judge’s ethnicity posed a conflict of interest in light of Trump’s proposal to build a wall on the U.S.-Mexican border. Curiel wrote in court papers that Trump has “placed the integrity of these court proceedings at issue”, but is forbidden from responding publicly to Trump’s claims in view of rules against public commentary by judges on active cases. On June 7, 2016 Trump issued a lengthy statement saying that his criticism of the judge had been “misconstrued” and that his concerns about Curiel’s impartiality were not based upon ethnicity alone, but also upon rulings in the case. He added that he did not intend to comment on this matter further.
A firestorm of self-righteous indignation followed.
Senator Elizabeth Warren took to the podium of the American Constitution Society (ACS) to attack Trump (as only a former Harvard bankruptcy professor can) while providing a ringing defense of Curiel. Vice President Joe Biden, speaking at the ACS as well, chimed in solemnly intoning about the independence of the federal judiciary. (Neither Warren nor Biden spoke about Whitehouse surrogates griping about the alleged political bias of U.S. District Judge Andy Hanen and his handling of the government’s program to quit enforcing laws the President doesn’t like.) It was typical left wing political crap.
My first essential point is that Judge Curiel did not need, or I suspect desire, this defense. After all, federal judges have a constitutional guarantee of judicial independence. The Founders were very smart. They realized that federal judges would be attacked for all sorts of reasons. Thus, the Constitution provides federal judges with life-time tenure subject only to impeachment. In short, don’t weep crocodile tears for Judge Curiel.*
My second essential point is that Judge Aaron Persky does need a defense similar to that provided by Warren and Biden for Judge Curiel. Judge Persky is an elected judge.
Persky has drawn intense criticism for sentencing a former Stanford University swimmer Brock Turner to only six months in jail for having sex with a drunken and unconscious woman. The problem is that Judge Persky is an “elected” judge, and there is a lynch mob out to get him driven by the social justice warriors who are a plague on rational thought.
In preparing this post, I read a lot about Persky. See, for example, the AP story here.
The District Attorney, who hated the sentence, doesn’t think the judge should lose his job. The prosecutors who handled the case think an appeal is futile because it was “authorized by law and was made by applying the correct standards.” “Lawyers who have appeared in Persky’s court have called him a fair and respected judge. He has no record of judicial discipline and previously worked as a prosecutor responsible for keeping sexual predators locked up.”
The judge is a Phi Beta graduate of Stanford with a Master’s degree from that institution. He got his law degree from Berkley. He was an associate for five years at the huge and highly respected law firm of Morrison and Forester. Assigned to Tokyo, he taught himself Japanese and won a national Japanese speaking competition for non-native speakers known as the Foreign Minister’s Prize.
While in private practice, Persky received the California Association of Human Relations Organizations’ Civil Rights Leadership Award for work on hate crimes, and the State Bar of California’s Wiley Manuel Pro Bono Award for his pro bono work for the poor. He has served on the executive committee of the Support Network for Battered Women. After graduating from Stanford, Persky hiked from Palo Alto to Washington, D.C., to raise money for the Red Cross African Famine Relief Campaign. For four straight years, he participated in the California AIDS Ride, cycling from San Francisco to Los Angeles.
Perhaps the judge made a bad mistake in the Turner case. I don’t know enough about the facts or California law to express an opinion. For example, I don’t know what she actually told the independent probation officer. But I do know there is a campaign to intimidate judges in rape case.
I have done my best as a federal judge to protect state judges from such threats. See, e.g., Bethany V. Bowen, Plaintiff, v. Honorable Jeffre Cheuvront, in his official capacity as Justice of the District Court for the State of Nebraska, Defendant, No. 4:07CV3221, 516 F.Supp.2d 1021 (D. Neb. 2007). In that same vein, Mark Joseph Stern recently wrote an article for Slate with a headline entitled, “The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system.” Stern made the following important point:
Liberals’ blasé attitude toward judicial impeachment and victim impact statements in the Turner case, then, must be viewed as part of a larger trend: the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence. That is a noble cause, but it cannot justify unraveling the most cherished safeguards of our criminal justice system. What Brock Turner did was sickening; what he received as punishment is far less than what he deserved. But eroding due process and threatening judicial independence is not the way to bring his victim justice.
If one is truly concerned about the rule of law and judicial independence, then the effort to discredit and oust Judge Persky should be shouted down. I wonder whether Senator Warren and Vice President Biden can be counted on to do so. Somehow, I doubt it.
Richard G. Kopf
Senior United States District Judge (Nebraska
*I have experience being attacked during high profile trial by a right-wing politician. During the bench trial of the federal partial-birth abortion case that ended up in the Supreme Court, a member of Congress from another state attended the first day of the proceedings and then held a press conference on the steps of the courthouse while commenting upon a remark I made during the trial. See here. This fellow made it known that: “I serve on the House Judiciary Committee in Congress, and on the Sub-Committee on the Constitution.” He issued other press releases stating that he had conferred with the Chair of the House Judiciary Committee and strongly implied that he would subpoena me to attend a hearing to explain myself. See here and here. By the way, I’m still looking for that subpoena.