Equal Justice Under Law
Four simple words are engraved above the doors to the Supreme Court: Equal Justice Under Law. That’s supposed to be the basic promise of our legal system: that our laws are just, and that everyone — everyone — will be held equally accountable if they break those laws.
We haven’t always fulfilled that promise — but it is the absolute standard to which we hold ourselves even when we fall short.
A vital part of that struggle is the fight for a truly professional, independent, and impartial judiciary. A place governed not by politics, not by money, not by power — but by those four simple words: equal justice under law.
Three years ago, I came to the American Constitution Society to deliver a warning about how that promise is under threat.
I talked pretty bluntly about how we are losing the fight over whether our courts will remain a neutral forum, faithfully interpreting the law and dispensing fair and impartial justice, or whether rich and powerful interests will completely capture our judicial branch.
I talked about how year after year, for more than thirty years, powerful interests have worked to rewrite the law and tilt the courts to favor billionaires and giant corporations. Cases that protected giant businesses from accountability. Cases that made it harder for individuals to get into court. Cases that gutted longstanding laws protecting consumers from being cheated. And cases like Citizens United, which unleashed an avalanche of billionaire SuperPAC dollars and secret corporate money in a mad dash to tilt the rest of the government in favor of the wealthy.
Today, I’m here to update that warning. Because what we’ve seen over the past three years — accelerating over the past three months, and even the past three weeks — is alarming. Powerful interests are now launching a full-scale assault on the integrity of the federal judiciary and its judges.
This assault has two major elements. First, tearing down our centuries-old process for appointing judges. Second, viciously attacking judicial nominees, potential nominees, and even sitting federal judges, at the first sign that they might put the rule of law above devotion to the rich and powerful.
Earlier this week, I released a comprehensive report on the Republican campaign of obstruction against President Obama’s nominees. It details how Senate Republicans have delayed or blocked votes on key nominations throughout the entire Obama Presidency. The purpose of this obstruction is to hold open federal positions for as long as possible. The purpose is to hamstring the President’s ability to protect consumers and workers, to hold large corporations accountable, and to promote equality. In other words, to undermine the fundamental principle of Equal Justice Under Law.
The centerpiece of that strategy has been a blockade of federal judicial appointments — and it’s much bigger than just the Supreme Court.
From the day President Obama was sworn in, Senate Republicans have used every procedural tool at their disposal to slow down his nominees. They spent months abusing the filibuster in a naked effort to preserve a right wing majority on the D.C. Circuit. After capturing the Senate in 2015, they have slowed judicial confirmations to a trickle.
Judicial emergencies multiply. Cases pile up. Courts are starved for help. And now the Supreme Court of the United States sits paralyzed, unable to deal with its most challenging cases. All because extremist Republicans who reject the legitimacy of President Obama are determined to make certain our courts advance only the agenda of the wealthy and the powerful.
It is outrageous — and it is up to us to fight back.
Senate Republicans, do your job. Give District Court nominees their votes.
Do your job. Give Circuit Court nominees their votes.
Do your job. Give Merrick Garland his vote!
The nominations blockade is the first part of this assault on the judiciary. But there is a second, even uglier line of attack — intimidation.
Justice demands a judiciary made up of independent lawyers who can provide insight and expertise from every corner of the profession. But Senate Republicans and their big business allies don’t like nominees whose resumes reflect insufficient devotion to the interests of the rich and powerful — so they smear them. Defense lawyers, public interest lawyers, plaintiff’s attorneys — nominees with these professional experiences are regularly slandered. Their integrity is questioned. And scores of Republicans line up to oppose them.
Senator Jeff Sessions of Alabama has attacked the integrity of several of President Obama’s nominees for having some association with the American Civil Liberties Union. Apparently being connected to with an organization whose central purpose is to defend rights guaranteed by the Constitution is an automatic disqualification. Sessions vowed that the nominations process would become “a more contentious matter if we keep seeing the ACLU chromosome as part of this process” — and he meant it.
During her confirmation hearing to be a District Court judge this year, Senator Sessions insulted Paula Xinis, a former federal public defender and civil rights lawyer who worked on cases of police abuse. He asked if she could “assure the police officers … that might be brought before your court that they’ll get a fair day in court, and that your history would not impact your decision-making.” I’ll let you guess how many times Senator Sessions has questioned a fancy corporate defense lawyer, asking if they would assure victims of fraud or people poisoned by toxic wastes or people injured by shoddy products or employees fired illegally because they tried to form a union — if they would get a fair day in court. Judge Xinis was rated unanimously well-qualified by the American Bar Association. Yet she was barely confirmed, with nearly three dozen Republican Senators voting no.
This approach is corrosive to the legal profession. It is corrosive to our courts. It is corrosive to the rule of law. It is the responsibility of every lawyer — no matter who their clients are — to stand up and fight back.
The attacks around the current Supreme Court vacancy have been even uglier. At one point, Senator John Cornyn of Texas — the #2 Republican in the Senate — announced that any nominee — ANY NOMINEE — put forward by the President would be beaten like “a piñata.” And his right-wing billionaire and big business allies have made good on that threat.
When rumors circulated that Jane Kelly, a highly respected federal judge, might — might — be under consideration, the Judicial Crisis Network — a shadowy right-wing group financed with dark money from the billionaire Koch brothers — ran television ads attacking her for her service to the nation as a federal public defender.
The President eventually nominated Merrick Garland — a judge so revered for his professionalism that days before he was announced, Republican Senator Orrin Hatch called him a “fine man” who the President could “easily name” to fill the vacancy. And what happened?
Scores of Republican Senators refused to even meet with him. The Judicial Crisis Network started spending millions of dollars on television ads demeaning him.
The NFIB — a right-wing Washington lobbying group that claims to speak for small businesses but is swimming in cash from conservative billionaires — announced that it would oppose Garland’s nomination because “[i]n cases involving federal agencies, the Judge ruled in their favor 77 percent of the time.” Every lawyer in this room knows that federal law requires judges defer to most agency actions. But apparently, it doesn’t matter anymore whether Judge Garland follows the law — what matters is that he doesn’t bend the law to suit giant corporations.
Judge Garland is not a politician. He is a judge with an unimpeachable record of putting the law first. And for that sin, he faces a nonstop, national campaign of slime. He faces historic disrespect from the Republicans who control Senate. It is despicable. It must end. We must end it.
The goal is to tilt the game, and it’s working — 86% of President Obama’s judicial nominees have worked as a corporate attorney, a prosecutor, or both, while less than 4% have worked as lawyers at public interest organizations. Professional diversity is missing from the federal bench — and justice suffers for it.
But even disqualifying judges based on their professional background isn’t enough for Donald Trump.
Trump tells everyone who will listen that he’s a great businessman, but let’s be honest — he’s just a guy who inherited a fortune and kept it rolling along by cheating people.
When that’s your business model, sooner or later you’re probably going to run into legal trouble. And Donald Trump has run into a lot of legal trouble. Ah, yes — Trump University, which his own former employees refer to as one big “fraudulent scheme.”
Many of the Trump University victims ended up deep in debt — sometimes tens of thousands of dollars with no way to pay it off. Trump’s employee playbook said to look for people with financial problems — because they make good targets. He even encouraged his salesforce to go after elderly people who were trying to create a little financial security.
I taught law for more than 30 years. Ask any lawyer in America and they’ll tell you that sounds like fraud. And that’s exactly what Donald Trump is being sued for — fraud, and worse, for targeting the most vulnerable people he could find, lying to them, taking all their money and leaving them in debt.
Some of those people are fighting back. Because in America, we have the rule of law — and that means that no matter how rich you are, no matter how loud you are, no matter how famous you are, if you break the law, you can be held accountable. Even when your name is Donald Trump.
But Trump doesn’t think those rules apply to him. So at a political rally two weeks ago, and almost daily since then, the presumptive Republican nominee for President of the United States has savagely attacked Gonzalo Curiel, the federal judge presiding over his case.
“We are in front of a very hostile judge,” Trump said. “Frankly, he should recuse himself. He has given us ruling after ruling, negative, negative, negative.”
Understand what this is. Trump is criticizing Judge Curiel for following the law, instead of bending it to suit the financial interests of one wealthy and oh-so-fragile defendant.
Trump also whined that he’s being been treated “unfairly” because “the judge … happens to be, we believe, Mexican.” And when he got called out, he doubled down by saying “I’m building a wall. It’s an inherent conflict of interest.” He’s personally directed his army of campaign surrogates to step up their own public attacks on Judge Curiel. He’s even condemned federal judges who are Muslim — on the disgusting theory that Trump’s own bigotry compromises the judges’ neutrality.
Like all federal judges, Judge Curiel is bound by the federal code of judicial ethics not to respond to these attacks. Trump is picking on someone who is ethically bound not to defend himself — exactly what you’d expect from a thin-skinned, racist bully.
Judge Curiel can’t respond — but we can. We can tell his story.
Gonzalo Curiel was born in Indiana — not Mexico — to immigrant parents who worked hard their entire lives and were handed nothing. He went to Indiana University for undergrad and then for law school.
For thirteen years, he worked as a federal prosecutor in Southern California, fighting the Mexican drug cartels as a leader of that region’s narcotics enforcement division. He collaborated with top Mexican officials to disrupt the culture of corruption between the Mexican government and the most powerful and deadly cocaine smugglers in North America.
The effort was impressive. On both sides of the border, money launderers, street gangs, and assassins were arrested and prosecuted.
But that success came at great cost. Witnesses were killed. Mexican officials were murdered. Judge Curiel himself was the target of an assassination plot and spent the better part of a year living officially in hiding, under the protection of U.S. Marshals.
Later, after his years of service as a prosecutor, Judge Curiel was appointed to the California state courts by a Republican governor who calls him an “American hero.” He was nominated to the federal bench by a Democratic president, and confirmed by a voice vote in the Senate.
That’s what kind of a man Judge Curiel is. What kind of a man is Donald Trump?
Donald Trump says “Judge Curiel should be ashamed of himself.”
No, Donald — you should be ashamed of yourself. Ashamed for using the megaphone of a Presidential campaign to attack a judge’s character and integrity simply because you think you have some God-given right to steal people’s money and get away with it. You shame yourself and you shame this great country.
Donald Trump says “[t]hey ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace.”
No, Donald — what you are doing is a total disgrace. Race-baiting a judge who spent years defending America from the terror of murderers and drug traffickers simply because long ago his family came to America from somewhere else. You, Donald Trump, are a total disgrace.
Judge Curiel is one of countless American patriots who has spent decades quietly serving his country, sometimes at great risk to his own life. Donald Trump is a loud, nasty, thin-skinned fraud who has never risked anything for anyone and serves nobody but himself. And that is just one of the many reasons why he will never be President of the United States.
And in spite of these shameful attacks, nobody doubts that Judge Curiel will continue to preside over Trump’s case as a fair and neutral judge. Because Judge Curiel is a lawyer with integrity — and that’s what lawyers with integrity do.
Judge Curiel has survived far worse than Donald Trump. He has survived actual assassination attempts. He’ll have no problem surviving Trump’s nasty temper tantrums.
When first asked if he would condemn Trump’s comments about Judge Curiel, Senator Mitch McConnell, the Senate Republican leader, said, well, gee, you know, “Donald Trump is certainly a different kind of candidate.” After days of pressure, McConnell finally said that attacking the judge is “stupid” and that Trump should “get on script.”
What script is that, exactly? And where do you suppose Donald Trump got the idea that he can personally attack judges, regardless of the law, whenever they don’t bend to the whims of billionaires and big business?
Trump isn’t a different kind of candidate. He’s a Mitch McConnell kind of candidate. Exactly the kind of candidate you’d expect from a Republican Party whose “script” for several years has been to execute a full-scale assault on the integrity of our courts. Blockading judicial appointments so Donald Trump can fill them. Smearing and intimidating nominees who do not pledge allegiance to the financial interests of the rich and the powerful.
Trump is also House Speaker Paul Ryan’s kind of candidate. Paul Ryan condemned Trump’s campaign for its attacks on Judge Curiel’s integrity. Great. Where’s Paul Ryan’s condemnation of the blockade, the intimidation, the smears, and the slime against the integrity of qualified judicial nominees and Judge Garland?
Paul Ryan and Mitch McConnell want Donald Trump to appoint the next generation of judges. They want those judges to tilt the law to favor big business and billionaires like Trump. They just want Donald to quit being so vulgar and obvious about it.
Donald Trump chose racism as his weapon, but his aim is exactly the same as the rest of the Republicans. Pound the courts into submission to the rich and powerful.
Senator McConnell recently said he’s “pretty calm” about Donald Trump because “what protects us in this country against big mistakes being made is the structure, the Constitution, the institutions.” That is 100% wrong. Our democracy does not sustain itself. Our Constitution does not sustain itself. The rule of law does not sustain itself.
There have always been those with money and power who think the rules shouldn’t apply to them. Those who would pervert our system of government to serve their own ends. They have tried it before and they are trying it now. All that is required for the rule of law and our independent judiciary to collapse is for good people to stand by, and do nothing.
Now is not the time to stand by. Now is the time to stand up. Now is the time to say no. No. Not here. Not in these United States of America.
We are not a nation that disqualifies lawyers and judges from public service because of race — or religion — or gender — or because they haven’t spent their entire careers representing the wealthy and the powerful.
We are the nation of John Adams — a lawyer who defended the British soldiers after the Boston Massacre, and went on to serve as President of these United States.
We are the nation of Abraham Lincoln — a lawyer who defended accused killers, and went on to serve as President of these United States.
We are the nation of Thurgood Marshall — a lawyer who fought for racial equality, and went on to serve on the Supreme Court of these United States.
We are the nation of Ruth Bader Ginsberg — a lawyer who fought for gender equality, and went on to serve on the Supreme Court of these United States.
That is who we are. And we will not allow a small, insecure, thin-skinned wannabe tyrant or his allies in the Senate to destroy the rule of law in the United States of America.
It’s time again to fight — as we have in every generation — for those four simple words that define the promise of our legal system. Equal justice under law.
“The court doesn’t exist to give them justice… But to give them a chance at justice.”
-Galvin (Paul Newman), The Verdict
America suffers from superficial assumptions about not only our criminal laws, but the details of individual cases. We base our “knowledge” on headlines and soundbites, a thin stream of ignorance for evaluating someone’s guilt or innocence. We forget that the jury is sequestered away from the news, and that we in the public have different information than what the jury hears. Even the same information is expressed differently to juries. Our view of a trial from the outside is a watered down, over-simplified and twisted mess that bears little resemblance to the environment where these important decisions are made. As sad as I am about the entire case, I’m grateful we don’t let our emotional, thoughtless mob at large decide much of anything.
I’ve seen dozens of proclamations for what the Zimmerman verdict means, as if the entire 300+ million citizenry of America (or the 1000 people running the show if you believe in conspiracy theories) met together in Florida and agreed on a plan for how to ruin our nation through a single decision. Perhaps the most glaring oversight in our outrage is that a jury trial puts the burden of judgement into a handful of people. The six or twelve members of a jury are alone empowered to judge, which explains why most lawyers, victims and accused criminals avoid them (only 10% of cases go to trial, which, against my point, could also indicate something is wrong with our system). Whatever was wrong with America before the trial was wrong regardless of the outcome of this case. And unless those six people are a secret cabal running our nation, they never had the power to change America at large no matter what they decided.
Before you judge me and the tone of this post, if it matters, I think Zimmerman should have been charged at least with manslaughter. But what I think is irrelevant. as I was not on that jury. That’s my point.
There is no law that can guarantee everyone, or even a majority’s, sense of justice will be carried out. Instead we have laws that attempt to do the heavy lifting in providing a machine that gives everyone a chance at justice. A chance to make their case. And it’s not about what you know or believe but what you can prove to the satisfaction of the members of the jury. This means skill is a critical. It’s not the most righteous who wins, it’s who has the most skill in proving righteousness to the satisfaction of the jury. Is this fair? No. But it is clear.
If you read even a cursory critique of the prosecutions case against Zimmerman you’ll find reasonable questions about the actual evidence in the case, and how the prosecution used, or didn’t use it. Forget whether you agree with this critique or not, the outcome of the case means the jury likely did agree with some of it, and that’s all that matters.
In America we believe in reasonable doubt, and what a burden it is against immediate justice. Reasonable doubt means the job is on the prosecution to prove guilt, not on the defendant to prove innocence. The defense has the much easier job. Even the presentation of conflicting evidence and testimony can quickly create reasonable doubt on a jury, and there was plenty of conflicting testimony in the Zimmerman trial.
Reasonable doubt is unfair because it puts the prosecution at a disadvantage, but it’s unfair by design. Reasonable doubt prefers to let some accused people go free at the expense of preventing the innocent from being sent to prison. Reasonable doubt has its problems but it’s objective is clear, and it has been part of our legal system since its beginnings. It bets the sacrifice of justice of some guilty going free is more than compensated by preventing the innocent from being found guilty. Even if you don’t agree this is as good bet, it is the bet we have.
I am aware of the deep problems with racism, guns and crime in America. I understand why people feel outraged by the verdict and I feel sadness for everyone personally involved. But I won’t let one decision decided by six Florida citizens define much of anything for me or my country. I wish most of all for us to use our brains as much as our hearts in sorting our what the verdict means and what work we have to do to make our nation safe for everyone.