In Praise of Mexican Judges (and Indian and Gay Ones, Too)

This year, though, Indian lawyers and tribal governments have had their interests thrust into the middle of the presidential election.
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When the colonial government has a political issue about law, it seldom has much to do with Indian nations, because federal Indian law is generally out of the legal mainstream. This year, though, Indian lawyers and tribal governments have had their interests thrust into the middle of the presidential election.

Bloomberg.com reported on June 6 that the presumptive presidential nominee of the Republican Party, Donald J. Trump, had a conference call to order his surrogates to stay on the offensive against U.S. District Judge Gonzalo Curiel for unspecified acts of bias in the lawsuit against Trump over alleged fraud by Trump University.

A veritable who’s who of GOP office holders has stepped up to denounce Trump’s attack, the most attention-getting being Newt Gingrich, who was basking in speculation that Trump might ask him to take the VP slot. He called Trump’s assault on Judge Curiel “inexcusable.”

Trump’s campaign has put out very few surrogates, both because most office holders would not support him until he won and because Trump famously demands total control of his messages. Bloomberg reported only three names of surrogates on the conference call: Former Massachusetts Sen. Scott Brown, Florida Attorney General Pam Bondi, and, from Indian country, former Arizona Gov. Jan Brewer.

Trump at first denounced Curiel as a “Mexican judge,” something he finally dialed back to “of Mexican heritage” after being informed several times that Judge Curiel was born in Indiana. Other facts about Curiel’s background tumbled out as reporters investigated: as a federal prosecutor, he spent a period of time in hiding when a wiretap revealed that an official in a Mexican drug cartel ordered him assassinated; he was appointed a state court judge by then GOP Gov. Arnold Schwartzenegger; his appointment to the federal post by President Obama was confirmed by voice vote.

When Trump offered no support for his claim that Curiel is “a hater,” it harked back for Texans to a lawsuit the Southern Poverty Center (SPLC) filed against the KKK for burning Vietnamese shrimp boats. By luck of the draw, the case was assigned to Judge Gabrielle McDonald, who is not Vietnamese but she is African-American, and a recusal motion claimed that a black judge could never be fair to the KKK.

The KKK lost the recusal motion and the lawsuit. Judge McDonald went on to become the President of the International Criminal Tribunal for the former Yugoslavia. The KKK went on to bankruptcy because of many similar victories by the SPLC.

Less than 10 years before the KKK tried to remove Judge McDonald, Judge Leon Higginbotham, who would become Chief Judge of the Third Circuit Court of Appeals, wrote on the issue when subjected to a recusal motion as a trial judge in the Eastern District of Pennsylvania.

The facts in the recusal motion were that the judge was black, that the lawsuit was against a labor union claiming racial discrimination against blacks, that many of the union’s members were white, and that the judge had made a speech to The Association for the Study of Afro-American Life and History, which the union claimed meant the judge “presented himself as a leader in the future course of the black civil rights movement.”

In response to that motion, Judge Higginbotham wrote a few words that have been cited ever since:

I concede that I am black. I do not apologize for that obvious fact. I take rational pride in my heritage, just as most other ethnics take pride in theirs. However, that one is black does not mean, ipso facto, that he is anti-white; no more than being Jewish implies being anti-Catholic, or being Catholic implies being anti-Protestant. As do most blacks, I believe that the corridors of history in this country have been lined with countless instances of racial injustice. This is evident by the plain historical fact that for more than two and a half centuries, millions of blacks were slaves under the rule and sanction of law—a fate which confronted no other major minority in this country. Every presidential commission and almost every Supreme Court opinion dealing with racial matters have noted the fact that in this country, there has often been racial injustice for blacks.

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(The union’s) rationale would amount to, in practice, a double standard within the federal judiciary. By that standard, white judges will be permitted to keep the latitude they have enjoyed for centuries in discussing matters of intellectual substance, even issues of human rights and, because they are white, still be permitted to later decide specific factual situations involving the principles of human rights which they have discussed previously in a generalized fashion. But for black judges, defendants insist on a far more rigid standard, which would preclude black judges from ever discussing race relations even in the generalized fashion that other justices and judges have discussed issues of human rights. Under defendants' standards, if a black judge discusses race relations, he should thereafter be precluded from adjudicating matters, involving specific claims of racial discrimination.

To suggest that black judges should be so disqualified would be analogous to suggesting that the slave masters were right when, during tragic hours for this nation, they argued that only they, but not the slaves, could evaluate the harshness or justness of the system.

We hear these words with great interest in Indian country, where there are continual outbreaks of litigation over whether tribal courts can give fair trials to non-Indians while never questioning that both individual Indians and tribal governments must continue to submit themselves to a federal judiciary that has not, in my lifetime, made room for numbers of Indian judges in the double digits.

We hear these words and remember how the Republicans opposed reauthorization of the Violence Against Women Act because it reestablished tribal criminal jurisdiction over non-Indians who come on Indian land and abuse Indian women. It’s the same argument. There’s a terrible history between the Indians and the settlers, so there’s no way an Indian judge could be fair to a settler – like settler judges are always fair to Indians.

The worst nightmare for settlers who fear Indian revenge from the bench would be the Navajo judicial system, where all the judges must speak Navajo but none of the judges must have law degrees.

Bethany Berger published a study back in 2005 that found 95 cases of Navajos litigating with non-Navajos in tribal court. The non-Navajos won about half of the time. Berger’s study came after an examination of 20 tribal court systems by Nell Jessup Newton, who was also unable to find any systematic bias against non-Indians. In 2000, Mark D. Rosen looked at all the cases published in Indian Law Reporter between 1986 and 1998 involving the Indian Civil Rights Act, and was unable to demonstrate any bias against non-Indians.

Still, Trump claims that the inherent anti-Trump bias of persons of Mexican heritage and Muslims is “common sense.” I’m a judge and I have just as many biases as anyone else, but I am trained to recognize my biases and not act them out. I am unclear why my tribal enrollment would render me unable to profit from that training.

Tribal courts are still accused of bias regularly. White litigants still complain of black judges. Jewish judges regularly face recusal motions in cases involving Palestinians. In 2011, Judge Vaughn Walker faced a recusal motion in the case against the gay marriage ban in California because Walker is gay.

The mirror image of all these motions is the assumption that the straight white male Christian judges who still dominate the state and federal systems can be fair to women, blacks, Jews, Muslims, gays, and Indians. The attacks on judicial temperament based on all these classifications have failed in the courts, but Trump has instructed his surrogates that he will still appeal to the court of public opinion.

He says “I’m building a wall” and repeats the criticism of Justice Sonia Sotomayor when he complains that Judge Curiel is a member of the La Raza Lawyers of San Diego, which is affiliated with the Hispanic National Bar Association. He claims that shows Curiel to be “very pro-Mexico”

If Trump were litigating with some tribal government over casino turf, he would be uncomfortable with my tribal enrollment but apoplectic that I am a past President of the Texas Indian Bar Association, which was affiliated with the organization now known as the National Native American Bar Association. That would show me to be “very pro-Indian.”

It’s common sense that only straight white male Christian judges can be fair hearing disputes where only one side meets all those standards for judicial temperament, right?