John E. Jones III is a federal judge in the Middle District of Pennsylvania
Federal judges are subject to a Code of Conduct that prohibits us from engaging in political activity. This includes writing about politics, so at the outset I want to be very clear that it is neither my intention nor purpose to do so. Rather, I am offering a judge's perspective on Republican presidential candidate Donald Trump's recent criticism of U.S. District Judge Gonzalo Curiel.
I do not know Curiel, but I do know something about the difficult vetting process he went through before taking the federal bench. Suffice it to say that it is properly designed to screen out and disqualify those who are for any reason unfit to achieve a life appointment under Article III of the Constitution. I also know that the same Code of Conduct, as well as simple judicial prudence, cautions against Curiel responding to criticisms by litigants in cases pending before him.
It is against this backdrop that I consider Trump's recent assessment of Curiel. Trump was responding to a decision by Curiel that he did not like. Nothing new there, as losing litigants will typically blame the decision-maker. What is remarkable, however, is that Trump went further and attributed his loss to what he claimed was Curiel's Mexican heritage and the resulting bias it created. Trump has cited no facts in support of this assertion save that he suffered an adverse decision. Indeed, if Curiel had exhibited actual or even implied bias, Trump's lawyers could have formally sought his recusal. It is telling that they have not done so.
As noted, Curiel's lips are sealed and he cannot respond to Trump. While Curiel has not asked me to do so, I think it is important for one of his colleagues to speak out about this incident.
Here is a not-so-surprising disclosure: Judges are all too human and deeply imperfect. We can certainly get it wrong. Indeed, I have been told that on a number of occasions by a court of appeals. And we are hardly above being criticized by the public. I know this only too well, having decided a number of high-profile and controversial cases during my 14 years on the bench that have generated searing personal criticisms. That is as it should be in a democracy.
But when a sophisticated and intelligent individual grabs the proverbial bully pulpit of a presidential campaign to launch what can only be described as a misplaced and arguably racist diatribe against a member of the judiciary, it is something that should concern us all.
Trump is seeking the highest office in the land, and with that quest should come the responsibility to respect the proper function of all branches of our government. In The Federalist Papers, Alexander Hamilton wrote that the federal judiciary has "no influence over either the sword or the purse" and "may be said to have neither force nor will, but merely judgment." Appropriately, then, the proper function of our judiciary, and our ability to exercise our authority, is based on the integrity of individual judges. Thus, when a presidential candidate impugns a judge's reputation recklessly and without any basis in fact, it tears at the very fabric of our system of justice. For when our judiciary loses its collective integrity and resulting credibility with the citizenry, it is not long afterward that a loss of its authority will follow.
Of course Trump should and likely does know better than to believe that judges operate this way. His sister Judge Maryanne Trump Barry is an accomplished and superb member of the Third Circuit U.S. Court of Appeals, based in Philadelphia. Barry has participated in countless decisions involving controversial cases and has served with great distinction. I cannot know what Barry thinks of her brother's views on Curiel, but it is difficult to believe that this highly ethical and respected judge condones behavior that diminishes the judicial branch that she has served so well.
In the end, it is my hope that Trump does not really believe that Curiel has rendered a decision based on Trump's political positions. In just a few months, Trump may find himself elected president of the United States. While I am certain that he couldn't care less about my opinion and counsel, I would nonetheless urge him to recalibrate his rhetoric as it attends the judiciary. In fact, I would submit that it is his duty to do so.
Unlike the universe of electoral politics that Trump now inhabits, which will ultimately result in a majoritarian decision fueled by great emotion, the world that judges occupy is counter-majoritarian and deliberative. That is, judges are responsive to the Constitution and laws promulgated thereunder but not to the momentary whim of the electorate. As such, Judge Curiel's duty is to uphold his oath and to rule impartially, without fear, favor, or bias. There is no reason to believe he has failed to do so.