Ethnicity is not destiny in judging

Ethnicity is not destiny in judging
Stormy Daniels (Image: YouTube screen grab)

Judges should be evaluated based on their rulings, not their race or gender. But politicians often don’t do this. Former Senate Majority Leader Harry Reid (D-Nevada) denounced a Supreme Court ruling as the work of “five white men.” Ironically, that ruling was joined in by a black man, Justice Clarence Thomas. The ruling didn’t even involve a racial issue. But the race-baiting Reid injected race into it anyway, saying he wasn’t going to let “five white men” have the last word on the issue in question.

Race and gender are less important than other variables in how judges rule, such as their judicial philosophy and the political party of the president who appointed them. That is true even in cases raising racial or gender issues. Justice Sandra Day O’Connor provided the deciding vote to strike down Subtitle II-C of the Violence Against Women Act in United States v. Morrison (2000). Justice Thomas, an African-American, provided the deciding vote to overturn a lower court ruling upholding affirmative action in government contracts in Adarand Constructors v. Pena (2000). And Justice Stephen Breyer, a white man, provided the deciding vote to uphold affirmative action in college admissions in Grutter v. Bollinger (2003).

The latest example of how race does not dictate a judge’s rulings is in Judge James Otero’s ruling yesterday dismissing the Stormy Daniels defamation lawsuit against Donald Trump. It also orders her to pay his attorneys’ fees. Judge Otero is, as his name suggests, Hispanic.

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This is certainly not the first ruling by a Hispanic judge in favor of Donald Trump. Earlier, Judge Gonzalo Curiel ruled in favor of the Trump administration in a legal challenge in San Diego to the proposed border wall under the National Environmental Policy Act. This is the same judge Trump criticized in the 2016 election for allegedly being biased against him because Curiel was “Mexican.” Judge Curiel was presiding over a lawsuit against Trump University that later settled. Ironically, a different Mexican-American Judge in San Diego, Norma Gonzalez, had earlier dismissed that lawsuit, but that dismissal was appealed to the Ninth Circuit Court of Appeals, where a non-Hispanic panel of judges ruled that the lawsuit had been prematurely dismissed and should go forward. Later, lawyers for Trump University said that Curiel’s handling of the settlement was a “textbook example of a district court properly administering a settlement.”

While Judge Curiel was appointed by President Obama, he is not an ideologue or a partisan. He has adequately policed abusive class-action settlements, something he could probably have gotten away with not doing in the liberal Ninth Circuit. The Ninth Circuit Court of Appeals has been overly indulgent towards trial lawyers, allowing lazy trial judges to avoid adequately vetting such settlements if they wish. Judges’ willingness to police class-action settlements does not break down neatly along ideological lines — laziness is also a big factor in judges’ unwillingness to do so — but all other things being equal, conservative judges tend to be more willing to police class-action settlements than liberal judges.

Left-wing advocacy groups love racial “disparate impact” claims, which allow institutions to be sued without any showing of discriminatory intent. In Hardie v. NCAA, Judge Curiel rejected a “disparate impact” lawsuit against the NCAA under the Civil Rights Act, ruling that such claims are not cognizable under Title II given the Supreme Court’s teachings about the scope of private rights of action. The appeals court affirmed his dismissal of the lawsuit in 2017. But it did so on the more liberal ground that even if such claims are cognizable, the elements of such a claim were not met in the case before it. (One of the three judges on the appeals court panel agreed with Judge Curiel that such claims are not cognizable, while the other two avoided deciding the issue, leaving the door open to such lawsuits in the future under Title II).

An even better illustration of how race doesn’t dictate how a judge rules is the Ninth Circuit ruling against the Trump administration over sanctuary cities in San Francisco v. Trump. It was a 2-to-1 decision, with the two white male Democrats ruling against the administration, and the Hispanic GOP appointee (Ferdinand Fernandez) dissenting and arguing that the lawsuit against the administration should have been dismissed.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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