Being Mexican not grounds for a judge’s recusal

First thing we do, let’s kill all the lawyers.”

Lawyers like to wear Shakespeare’s famous line as a badge of honor. They claim the Bard was praising them for defending the rule of law in the face of anarchy.

They’re wrong. It was simply an early lawyer joke. Even in the 16th century, attorneys weren’t well-liked. And since I followed Sun Tzu’s advice to “know thy enemy” and earned a JD, let me say: I get it. Lawyers can be insufferable, present company included.

But like coyotes and carrion birds, attorneys serve an important role. The ideal of zealous representation was woven into the very fabric of our nation. John Adams defended the British redcoats who committed the Boston Massacre, while Abraham Lincoln represented slave owners. Their countrymen did not punish them for taking unpopular stands. Adams was soon elected to office in Massachusetts. Lincoln grew a successful law practice en route to national prominence. Famously, they went on to serve as a leader of the revolution and the “great emancipator,” respectively.

While Shakespeare’s line may have been a wisecrack, Adams and the other founders did believe practitioners of law were a bulwark against anarchy and mob rule. Creating an independent judiciary — wise individuals with the imprimatur of the two political branches — was intended to protect the Constitution against whims and ambition. A court’s power is derived solely from its legitimacy; without it, judges have no means to enforce their decisions. If legitimacy is lost, the delicate “checks and balances” of our government fail and the repercussions to the republic are severe.

That is why it has become de rigueur to call Donald Trump out for his attacks on Judge Gonzalo Curiel. Maybe there are valid grounds to ask for his recusal, but “being Mexican” is not one of them. And if judges are called illegitimate by political leaders, why should they carry any weight with the people?

The law is supposed to be blind; the powerful and the weak, all colors, creeds, sexes, and races are supposed to be equal before it. And those appointed to the judiciary are supposed to apply the law evenly. Sandra Day O’Connor and Ruth Bader Ginsburg knew this. When asked about the differences between male and female jurists, their responses echoed each other: “A wise old woman and a wise old man reach the same conclusion.”

Unfortunately, members of the judicial branch do not always hew to that maxim. Justice Sonia Sotomayor, prior to her appointment to the Supreme Court, often said she “would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion” than a white man. When it comes to meting out justice, there is no “better conclusion” — there is only the correct one. Blurring that line makes Trump’s accusations, while wrong, more credible. Yet he is merely the most recent in a long line of politicians accusing courts of bias.

President Barack Obama’s public chastisement of the Supreme Court at one of his State of the Union addresses, surrounded by applauding and hollering senators and congressmen, effectively called into question the court’s impartiality. Republicans have preemptively questioned the prejudices of Obama’s judicial nominee, before they even knew his name. And Joe Biden, Ted Kennedy, and others began this politicization years ago, when they denied a Supreme Court seat to a candidate for reasons not of qualification, but of philosophy.

If judges are unable to reach the correct decisions as the law provides, there are mechanisms in place to address them. We are watching it play out in the Stanford rape case — Judge Aaron Persky is facing a recall. And we are watching it in the “deflategate” case — Tom Brady is using the process available to seek further review.

So this election, it is especially important for candidates — on all sides — to reinforce the legitimacy of the judiciary; judges cannot do it themselves. We are close to a tipping point where decisions on law will no longer be respected if a person does not subjectively agree with the outcome. When that happens, this experiment in government by the people through separated powers will fail.
And that, ladies and gentlemen, is when it will be time to kill all the lawyers.

Michael Cianchette

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.