I have never been able to find that place to stand to cleanse myself of all bias. If that place exists, getting there involves abstaining from much that is important to me.
When I became a judge, I willingly took on the task of trying to avoid the appearance of bias, mindful of Justice Frankfurter’s admonition that “justice must satisfy the appearance of justice.” You know, like Leonard Peltier’s trial appeared unfair no matter whether you think he’s guilty?
To avoid the organizations most likely to be in court, I quit the ACLU and Greenpeace. I stayed with Amnesty International and The Nature Conservancy. It seemed like I wrote letters to most of the nasty dictators in the world on behalf of prisoners of conscience at the instigation of Amnesty International, but I never used their form letters and I knew AI would not ask a U.S. citizen to lobby about Peltier’s case, even though AI considers him a prisoner of conscience.
Then AI started taking on U.S. death penalty cases and working them from within the U.S., so I quit AI. A judge may not express an opinion on a matter pending before other courts, as well as his or her own.
On occasion, a litigant would dig into my activist past and file a motion to recuse me. Sometimes I recused myself but more often I did not because the allegation against my fairness often amounted to more than the observation that I had lived fully in my times.
Since I retired and I only sit when assigned, I've loosened up a lot, figuring that if my political positions would indicate bias in a particular case I won't get assigned that case in the first place and recusal will not be an issue.
I now have enough income from writing that I can with a straight face call it a third career. Bias is also an issue for reporters. My attitude toward my biases is not to deny them but to wear them on my sleeve. It's up to my readers to decide if my writing is reliable.
I was sending money to Bernie Sanders while I was writing news stories on all the presidential debates. If you followed my coverage, you know that I ripped Bernie when I thought he deserved it.
Now I find myself writing so much about the presumptive Republican nominee that I should disclose my biases, particularly since I keep acquiring new ones.
Here's my purpose. I'm going to write this down one time and try to be frank about all of it. If I feel the need to defend myself against accusations of implicit bias in my Trump coverage going forward, I'm going to cite the disclosures I'm about to make.
Reasons I might appear biased against Donald J. Trump:
1. I have a history as a Democrat. I have never voted in the primary of any party other than the Democratic Party. However, I have only voted a straight ticket once in my life and I regret it. It was a vote cast in anger over my son's deployment in the second Iraq War. I was voting in Bloomington at the time and apparently enough people shared my anger that some local holders of fairly technocratic offices lost their jobs for being Republicans in a Democratic tide without regard to being able public servants.
Mea maxima culpa. It was wrong and I knew better. A party wave election is a judge's worst nightmare. All of a sudden it does not matter how quick how correct how hardworking you've been--you are fired because of the letter next to your name.
I do not think I was unable to be fair as between Republicans and Democrats when I was a Democrat. As a writer, I do not consciously favor Democrats. I try to call 'em like I see 'em but my history suggests I tend to see issues more as Democrats would. I understand that appearance and that's why I disclose. I don’t think I can fail to disclose this just because Trump was apparently a Democrat longer than I was. He’s a Republican now and I’m not.
2. I am a dual citizen of the U.S. and a tribal nation located within the U.S. Trump has a history of insulting Indians and he believes tribal governments ought not to exist. His idea of insulting Sen. Elizabeth Warren is to call her “Pocahontas.” His problem with tribal sovereignty is not a conclusion rooted in history and political science, but rather distaste for competing with tribal casinos.
3. I am a veteran of the U.S. armed forces and Trump, while claiming he feels like a veteran because he attended a military prep school, has tried to represent himself as a longstanding supporter of veterans and their organizations. He treats us as if we are his campaign mascots and then savages veterans who dare to dissent.
I'm also not thrilled with his statements about veterans who were taken POW. He was attempting to insult Sen. John McCain, but the terms he used apply to every veteran unfortunate enough to have been captured. This is especially hard to take coming from a draft-dodging creation of inherited wealth. As Jimmy Kimmel said, “The closest Trump ever got to battle was his fight with Rosie O’Donnell.”
4. In my third career, I work in journalism, and in his press conference about the money he finally handed over to veteran organizations under the duress of public scrutiny, Trump set a new low in insulting all the news media--even Fox. It’s one thing to call out a particular reporter for some error, but he has repeatedly cast the whole profession into disrepute.
5. In my second career, I was a teacher, and I watched the rise of for-profit schools that ripped off people--often veterans, but also jobless people in government retraining programs--by admitting everybody for whom they could bill the government and providing zero educational benefit. These places were institutional insults to real teachers. I'm sure you know the kind of institution I mean. Trump University, for instance.
6. In my first career, I was a judge, and Trump has personally insulted the judge presiding in the case against Trump University. As in the case of his remarks about reporters, he speaks broadly enough to insult judges generally.
7. Some of my Democrat friends will consider it a blemish on my time in that party that I did some things on behalf of La Raza Unida. The thing most often cited is an editorial I wrote in The Daily Texan urging students to vote for the Democratic candidate for governor, horrible as he was, in majority student precincts, but to vote for the Raza Unida candidate in precincts that students did not control.
The objective was to maximize student power within the Democratic Party, because precinct delegates to the county convention were allotted according to the votes produced in the gubernatorial race, and at the same time add to Raza Unida’s statewide total to keep them on the ballot next election.
Also, I have a couple of times functioned as a bodyguard for César Chávez. That was a pretty serious commitment because we were not allowed to be armed, a limitation that did not apply to Chávez’s many enemies.
Trump attacked lots of people I care about when he went after persons of Mexican descent. His latest was denouncing the judge in his Trump University case, calling the judge "a Mexican." While that's not my idea of how you insult people, the judge was born in Indiana.
Finally, I have two daughters and his expressed attitudes towards women suggest they are in some manner less worthy than my sons. That is nonsense and I don't want anybody who thinks of women as he does in a position to disadvantage my daughters.
To sum up, I may have the appearance of bias against Donald Trump because I used to be a Democrat and because he has publicly insulted persons who practice all three of my careers: judge, teacher, and journalist.
In addition, he has insulted two parts of my identity--veteran and American Indian---and he has insulted many close friends and political supporters when he went after Mexican-Americans.
When he insults women, he insults my wife and daughters.
I count eight reasons why I cannot appear to be fair to Donald Trump. I’ve only set out insults personal to me or mine. His mocking of a disabled reporter offended me greatly, but there’s no end to the insults he has delivered beyond punch in the gut personal. The New York Times has tried to keep a running total, currently titled, “The 224 People, Places and Things Donald Trump Has Insulted on Twitter.”
I have no plans to refrain from writing about him. As one media critic said of Trump’s ability to dominate the news cycle, the media have been “covering him like the weather when they should cover him like the Iran hostage crisis.” No matter the method, we can’t ignore him when he takes the democratic mechanisms that have governed this republic hostage. The constitutional order is threatened by Trump as it has not been threatened since Andrew Jackson.
There is one more thing about judicial bias that might apply to journalist bias. A judge who is biased because of something that comes out in the evidence after the trial begins need not recuse himself. For a journalist, the analog to the trial would be the campaign.
Before this campaign began, I had no opinion of Donald Trump one way or the other. I don’t watch reality TV or live in New York. When he announced for POTUS, he referred to undocumented workers as “rapists.” That got my attention and it was all down hill from there as the insults kept coming. My biases come from Trump’s own words after he started running.
I've set out all the things I can think of that might offer an appearance of bias. If you think I show bias when I write about Trump, I've disclosed these things about myself so you can apply whatever discount to my credibility you think is warranted.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.