Judicial disqualification

[Amira]

I'm sure most of you know that a judge is required to recuse herself or himself from a case if she or he "has a personal bias or prejudice concerning a party."  I think this is a good thing, obviously. Impartiality is important.

 

Do you think a judge could ever be biased against a party in a case solely because of the ethnicity of the judge?  

 

If you follow the news you might notice a current evens connection with this question, but let's not go there and just stick with the underlying principle.  

 

 

[Tita Gidge]

I don't follow the news, so I have no clue to what you're referring.

 

But I think any human, even those trained to eliminate bias, can be susceptible to their own biases. This might include race, gender, socio-economics, or ....? 

 

They're human, after all.  But I think sometimes the opposite is in effect also, wherein they recognize they're under a brighter spotlight because people will speculate bias exists based on a shared race, gender, socio-economics, etc. And so they may be susceptible to reverse bias.

 

But mostly I like to think that most people in those type of positions are in those positions because they have a higher ability than the average bear in recognizing and working around personal bias. I choose to believe most have right and good intentions, and that only very few are corrupt or unethical.

[Amira]

Dialectica!  Are you back?

[Anne in CA]

I don't think any people can be truly impartial. They just can't.

[ChocolateReignRemix]

I don't think any people can be truly impartial. They just can't.

 

I am not sure about that.  I believe some do have the ability to follow the law and its procedures without bias if they make an effort to do so.

[ChocolateReignRemix]

Going to the heart of the question in the OP, you cannot strike a juror solely due to ethnicity, so the same standard would reasonably apply to judges.

 

 

 

https://en.wikipedia.org/wiki/Batson_v._Kentucky

 

"Batson has been applied to the discriminatory use of peremptory strikes against judges in a California case, Superior Court v. Williams. Defense counsel objected to the prosecution's motion to disqualify an African-American judge, suspecting that the motion was racially motivated. The Court noted that use of Equal Protection in Batson to combat racially discriminatory strikes against jurors was well established and that subsequent decisions had extended these protections in other contexts. The Court held that "these principles are equally applicable to race-based challenges to judges."

Edited June 3, 2016 by ChocolateReignRemix

[poppy]

I don't think any people can be truly impartial. They just can't.

 

You don't believe in the validity of any verdict, ever?

[poppy]

I just googled to figure out what this could be referring to and I really wish there was a political subgroup.   If there is one, can anyone point me to it? I can't figure out how to make one.

[poppy]

Is true impartiality required to reach a just verdict?

 

Impartiality as opposed to an bias based on ethnicity? Yes.

[Ravin]

No.

[Amira]

I just googled to figure out what this could be referring to and I really wish there was a political subgroup.   If there is one, can anyone point me to it? I can't figure out how to make one.

 

I've been tempted to do this for months now so I finally did it.  

 

http://forums.welltrainedmind.com/groups/263-wtm-politics/

[eternalsummer]

I think you can be trained, generally, to act impartially even if you don't feel impartial.

 

Like for instance, I used to grade standardized writing tests for a living.  My inclination was to over-penalize for poor handwriting and bad spelling (like, I would see a response, it would have sloppy handwriting and bad mechanics, and I'd assume the whole response was worth a 2 on a scale of 5).  In reality, everything else about the response might be perfect, and it deserved a 3 or 4 on a scale of 5.

 

I was trained, and learned, to *act* impartially, even though I didn't *feel* impartial.

 

 

However, to be completely honest, I could score the ACT writing test with 95% accuracy just going by handwriting, length of response, and scanning for keywords.

 

Or I could read them and score with 95% accuracy.

 

Sometimes prejudices are based on something real.

[Amira]

I agree that it's hard to be truly and completely impartial and that biases are based on a lot of different things.  But is anyone inherently biased against certain people or issues because of their ethnicity?  Does everyone in any ethnic group share the exact same opinion on any given topic?

[redsquirrel]

I believe this has been heard and decided in the courts many times.  A judge cannot be removed due to their ethnicity etc.

 

If that was the case what would stop someone from judge shopping? All they have to do is say something about that group and then claim the judge is biased. You keep doing this until you get the judge you want. It doesnt work that way

[redsquirrel]

And judges decisions are subject to appeal. If you think a judge is biased against you because you belong to a particular group or because the judge is part of a particular group then you are free to appeal.  A panel of judges will hear your argument and decide if your argument has merit

[Pawz4me]

If a judge could be removed (or should recuse himself) due to ethnicity, then what about a judge's sex?  Or religion?  Or any number of other issues.  Our court system would be in gridlock.  So . . . no.  Just no,

[redsquirrel]

This is also why judges so often rely on previous opinion.  Their decisions are based on the decisions that others have made for and against whatever particular question is being decided.  If  judge is flying in the face of all that has come before that is a good sign to that judge that she needs to read previous case law and try to find other decisions in line with what she is considering etc.  If a judge can't then they had better be able to issue a very, very solid written decision about why she is doing what she is doing. Or that judge is going to find herself overturned on appeal.

[Danestress]

No one is without some bias. I don't think membership in a racial group itself is raises a sufficient appearance of impartiality to force a disqualification.

 

I will be interested to see if any litigants (who we are not actually discussing specifically) file an actual motion to disqualify any (hypothetical) judges any time soon, and what grounds that motion might state. It's easy to spout off to the press. One might try to antagonize an inexperienced judge into commenting defensively and bolster one's case. But actually filing a motion takes a little more commitment.

Edited June 4, 2016 by Danestress

[Ohdanigirl]

Oh boy, I was just reading the story you are likely referring to.

 

I agree with the poster who said you can be trained to act impartial.

 

With that said we are human and our experiences and background do in fact affect how we view and interpret things. Since ethnicity was mentioned...I am half white/half Mexican. I have had discussions about certain (recent) current events and, if I analyze honestly, this comes into play. I have had these discussions with my white friends and family, and there are things they just cant fathom or comprehend and I am unsure how to explain. The same happens in the conversations I have had with Mexican can and Mexican-American friends and family. Some things are just culturally engrained, and we don't always realize it.

 

I do not think a judge should recuse themselves based on race, ethnicity, culture, religion, sexual orientation, etc. judges use their legal training and precedent to make decisions.

 

 

Sent from my iPad using Tapatalk

[eternalsummer]

I don't think you can ever say that every member of a race or ethnicity or national origin will think a certain way; therefore, it's pretty difficult to imagine disqualification solely on the basis of one of those categories.

 

However, you can definitely say that members of races, ethnicities, etc. *often* think a certain way.  So for example Ben Carson is a reasonably conservative Republican, but on the whole African-Americans vote like 90% Democrat.

 

I don't think this means you can just disqualify all black judges from moderating issues with prominent Republicans, but certainly you can seek to make the case that a particular judge is unfairly prejudiced against you for some reason and has demonstrated (in the past or present) an inability to act impartially regardless of this prejudice. 

[zoobie]

I can't even.

[eternalsummer]

Well, it goes both ways of course (and many other ways), but in the US the numbers are the most dramatic with that racial group/voting pattern.

[Guest]

Am I the only person who cannot figure out what this case is? I admit I purposely avoid the news cycle but I'm lost on this one.

 

I think some people can be biased by group identity and some can be objective, it just depends on the individual's commitment to an impartial legal interpretation. I think it varies - some people are more just and fair in their assessments and others are more labile or easily swayed by outside factors.

[eternalsummer]

Am I the only person who cannot figure out what this case is? I admit I purposely avoid the news cycle but I'm lost on this one.

 

I think some people can be biased by group identity and some can be objective, it just depends on the individual's commitment to an impartial legal interpretation. I think it varies - some people are more just and fair in their assessments and others are more labile or easily swayed by outside factors.

 

I read the news pretty constantly from a variety of sources and I still had to look it up.

 

Part of it I think is that I filter certain topics :)

[fraidycat]

Am I the only person who cannot figure out what this case is? I admit I purposely avoid the news cycle but I'm lost on this one.

 

I think some people can be biased by group identity and some can be objective, it just depends on the individual's commitment to an impartial legal interpretation. I think it varies - some people are more just and fair in their assessments and others are more labile or easily swayed by outside factors.

"Reality t.v." Political figure. For profit (now defunct) "university". Judge is midwestern American by birth, but his appearance is "deceiving".

 

As for the OP. Yes, the judge could be biased, solely due to ethnicity in some cases. I don't think that is always or even usually the case, though. I think it'd be extremely rare.

Edited June 4, 2016 by fraidycat

[Guest]

Wait, you mean about Judge Curiel? I'd have never linked the comments here to the case. Is it receiving a lot of air time? It's been modestly discussed over many months in the columns and editorials.

[zoobie]

Wait, you mean about Judge Curiel? I'd have never linked the comments here to the case. Is it receiving a lot of air time? It's been modestly discussed over many months in the columns and editorials.

Yes, it's the lead story on most US news sites. The political figure's commentary and vitriol has increased the past few days. It's...unusual.

[eternalsummer]

We live in unusual times :)

[SKL]

I think it's a reasonable thing to challenge if you're an interested person in a case that would be impacted by bias.  You might not win, but a lot of objections are made at trial, since it's an adversarial process by nature.  I'm not sure it's really newsworthy.

[ChocolateReignRemix]

I think it's a reasonable thing to challenge if you're an interested person in a case that would be impacted by bias. You might not win, but a lot of objections are made at trial, since it's an adversarial process by nature. I'm not sure it's really newsworthy.

You can't challenge based on ethnicity. Doing so is just lol bad.

[SKL]

I haven't seen the actual filing challenging the judge to see what it is based on.  (If there is such a filing.)  I've seen the words "very very unfair" and implications of bias in political speeches intended to minimize the importance of the lawsuits etc. in the minds of voters.  It seems similar to other politicians' comments which seek to blow off legal proceedings and investigations during election cycles and after being elected.  The majority of what I've seen is journalists paraphrasing and interpreting whatever was said based on their own political biases.  :)

Edited June 4, 2016 by SKL

[Pawz4me]

I haven't seen the actual filing challenging the judge to see what it is based on.  (If there is such a filing.)  I've seen the words "very very unfair" and implications of bias in political speeches intended to minimize the importance of the lawsuits etc. in the minds of voters.  It seems similar to other politicians' comments which seek to blow off legal proceedings and investigations during election cycles and after being elected.  The majority of what I've seen is journalists paraphrasing and interpreting whatever was said based on their own political biases.  :)

 

There has been no filing challenging the judge.  Which says a LOT.

[Valley Girl]

Everybody has biases. A good judge has been trained and has trained himself or herself to rise above it and put commitment to the law, the facts of the case, and judicial process above personal opinion.  Simply being a certain ethnicity or religion or political persuasion shouldn't factor into the equation. If a particular judge has some specific action or set of actions in their history that put that ability to be impartial in question, that's where there's a problem. (For instance, I'm thinking that being a member of the KKK clearly puts impartiality in certain cases in question. Allowing the KKK to march because the Constitution protects free speech no matter how distastful it is would not.)

[FaithManor]

Everybody has biases. A good judge has been trained and has trained himself or herself to rise above it and put commitment to the law, the facts of the case, and judicial process above personal opinion.  Simply being a certain ethnicity or religion or political persuasion shouldn't factor into the equation. If a particular judge has some specific action or set of actions in their history that put that ability to be impartial in question, that's where there's a problem. (For instance, I'm thinking that being a member of the KKK clearly puts impartiality in certain cases in question. Allowing the KKK to march because the Constitution protects free speech no matter how distastful it is would not.)

This.

 

And I've seen doctors rise above some pretty crazy bias in order to do the right thing. I think also about the time that dd treated a convicted murderer - premeditated, and gruesome - as a medic. It would have been so easy for her to just let him suffer, and frankly he would have deserved to not have her tender loving care, but she sucked it up and treated him like any other patient - even after he threatened that if he ever got out of jail he was going to find her and "have my way with you" - because she took an oath.

 

Now the officer guarding him? Not so much. He got sick of the way the prisoner was talking to her and punched him in the mouth a good one which ended the threats. 

 

So I've seen many times when people have overcome bias and been impartial because they choose to do so and that makes all the difference.

[Lady Florida.]

I'm not sure if this link is within the rules, but if you (general you) read about that judge's history you would (should) have a hard time thinking he will be biased.

 

http://www.nytimes.com/2016/06/04/us/politics/donald-trump-university-judge-gonzalo-curiel.html

 

 

I've been tempted to do this for months now so I finally did it.  

 

http://forums.welltrainedmind.com/groups/263-wtm-politics/

 

I just joined.

 

NM my deleted comment. I found the other members. :)

Edited June 4, 2016 by Lady Florida.

[SKL]

There has been no filing challenging the judge.  Which says a LOT.

 

To me, it says journalists are misreporting.  One doesn't disqualify a judge by saying "very unfair" in a speech.  But much of the US now thinks there has been a formal demand for disqualification.  There are even articles about how dangerous that is to the US justice system.

 

Basically he's saying it's a vast left wing conspiracy.  :P

[zoobie]

Never mind. Waste of typing.

Edited June 4, 2016 by zoobie

[SKL]

Have you listened to the actual comments? This isn't a quote taken out of context. A federal judge (US Citizen born in Indiana) has been repeatedly called "that Mexican."

 

I have listened to the ones I could find - hard to do between all the comments about the comments which are not actual quotes or they take a word or two out of the actual quote.

I know he mentioned the guy has Mexican ancestry and implied he was probably biased about Trump because of Trump's immigration proposals.  I would not have said that, but I can understand him thinking there is bias because the judge unsealed sealed records (which Trump says is unfair) and is an Obama appointee and perhaps has other history that indicates a political position to the left of Trump (which is not unusual).  I have no idea whether the judge was influenced by bias, but I'm not surprised a politician is alleging bias - it happens all the time.  And sometimes it is impliedly based on race / gender, though usually the allegation is sexism/racism against women / nonwhite.

 

 

[Pawz4me]

To me, it says journalists are misreporting.  One doesn't disqualify a judge by saying "very unfair" in a speech.  But much of the US now thinks there has been a formal demand for disqualification.  There are even articles about how dangerous that is to the US justice system.

 

Basically he's saying it's a vast left wing conspiracy.  :p

 

I apologize for perhaps being slow, but I have no idea what this comment means.  How are journalists misreporting by airing video of the person in question's speeches?

[Pawz4me]

I have listened to the ones I could find - hard to do between all the comments about the comments which are not actual quotes or they take a word or two out of the actual quote.

I know he mentioned the guy has Mexican ancestry and implied he was probably biased about Trump because of Trump's immigration proposals.  I would not have said that, but I can understand him thinking there is bias because the judge unsealed sealed records (which Trump says is unfair) and is an Obama appointee and perhaps has other history that indicates a political position to the left of Trump (which is not unusual).  I have no idea whether the judge was influenced by bias, but I'm not surprised a politician is alleging bias - it happens all the time.  And sometimes it is impliedly based on race / gender, though usually the allegation is sexism/racism against women / nonwhite.

 

And yet he never mentions that the judge scheduled the trial so that it will not occur before the election.  He could certainly have scheduled it sooner.  That he didn't certainly doesn't point much to bias.

[Amira]

Another request to keep this from getting political. I don't want to cause problems for SWB.

[umsami]

Well, the judge in question was born in Illinois.

 

I do not think that a judge should be disqualified based on ethnicity or race, although I could see how say a member of a hate group against flying spaghetti monsters, might not be comfortable having a judge who worshiped the flying spaghetti monster judge his case. 

[TranquilMind]

I'm sure most of you know that a judge is required to recuse herself or himself from a case if she or he "has a personal bias or prejudice concerning a party."  I think this is a good thing, obviously. Impartiality is important.

 

Do you think a judge could ever be biased against a party in a case solely because of the ethnicity of the judge?  

 

If you follow the news you might notice a current evens connection with this question, but let's not go there and just stick with the underlying principle.  

 

Honest answer?  I don't know.

 

I'm sure it is possible, because humans aren't automatons.  They are inherently biased, some more, some less. 

 

[ChocolateReignRemix]

Well, the judge in question was born in Illinois.

 

I do not think that a judge should be disqualified based on ethnicity or race, although I could see how say a member of a hate group against flying spaghetti monsters, might not be comfortable having a judge who worshiped the flying spaghetti monster judge his case. 

 

 Fortunately, simply being uncomfortable doesn't warrant requesting that a judge be removed from a case.  However, if the judge does have a history indicating a bias, a motion to have them removed can be made.

[TranquilMind]

Yes, I agree, of course. Though that was the context of this thread, I thought the above poster was simply referring to the impossibility of true impartiality in general. For instance, are you going to leave your emotions at the door when facing a proven child rapist? I would think that is rather hard, though seeing many such people over the course of a career may numb those emotions some. If you are bringing emotions into the equation in any way, by feeling compassion towards the victim for instance, you've already left impartiality behind to some degree. I don't think that this is necessarily something that impairs justice.

 

People never understand this about criminal defense.  They often ask how one can defend that awful rapist (murderer, etc).  Well, the reason is that our legal system says that everyone is entitled to a fair trial.  All the defense attorney can do is the best he can do with the evidence permitted (and sometimes he really doesn't have that much to work with), and trust the system to work, which it does, most of the time.  You can think the guy is a complete slime bag but the only thing you have to do is your job, which is present the evidence the best you can in his favor, and see what happens. 

 

You can present the best BS case ever, and most juries will see right through it.   Most really intend to do the right thing.  There are miscarriages of justice, of course, but in general, it mostly works. 

 

[TranquilMind]

Talking about the judge and jury (where relevant) though, those whose task it is to make the final sentencing decision, in the US, to what extent do personal decisions play a role and to what extent is a sentence predetermined by law? The evidence should determine whether or not one is guilty, but if, as in the country where I live, how much time a person gets is up to the judge to some extent, do you not think that that is exactly where personal biases/judgments/opinions would come into play?

Well, sure it does, but it isn't as if the judge can render a decision without any evidence.  He has to state his basis of evidence for any sentence, and if that is overturned on appeal, then it won't stand. 

[ChocolateReignRemix]

Talking about the judge and jury (where relevant) though, those whose task it is to make the final sentencing decision, in the US, to what extent do personal decisions play a role and to what extent is a sentence predetermined by law? The evidence should determine whether or not one is guilty, but if, as in the country where I live, how much time a person gets is up to the judge to some extent, do you not think that that is exactly where personal biases/judgments/opinions would come into play?

 

It can come into play there and be less transparent when it does.  To address that there has been a move to mandatory minimum sentencing, which has created a different set of problems.

[goldberry]

. I do agree with that person to some extent: even without belonging to that ethnic group, his statements regarding that ethnic group influence my opinion of that person negatively. I don't know that that necessarily impacts the outcome of the case (hopefully not and I'd imagine one wouldn't be a judge if one tended that way), but it would lead to opinions, certainly.

 

The thing is though, that could set a precedent.  If I didn't like my judge who was Asian, I could go around saying bad things about Asians, then say the judge couldn't help but be influenced by that and should recuse himself.  

 

But to do that would basically be admitting that I said things crappy enough to influence someone who makes a profession of objectivity. ;)

[VeritasMama]

Ethnicity? No.

 

Membership and activism for a group such as La Raza? Yes, depending on the case. In the case I assume you are referring to, it is unclear if there is a conflict of interest. La Raza is a very progressive pro-illegal immigration group, and the judge in question has been very involved with some of their work.

[redsquirrel]

Ethnicity? No.

 

Membership and activism for a group such as La Raza? Yes, depending on the case. In the case I assume you are referring to, it is unclear if there is a conflict of interest. La Raza is a very progressive pro-illegal immigration group, and the judge in question has been very involved with some of their work.

 

There is more than one organization with the words "La Raza" in the title. They are not all the same group or branches of the same group. So it seems that some news sources need to be doing a better job explaining that.