Judge Says No to Recusal|After Hitler Remarks

HOUSTON (CN) - A federal judge declined to recuse himself from a case where his offhand comments about Hitler and the swastika during a pre-trial hearing prompted calls for his resignation.

U.S. District Judge Lynn Hughes was appointed to the bench in 1985 by President Ronald Reagan. His controversial comments surfaced after a plaintiff moved for the judge to recuse himself from their case in January.

Jitendra "J.T." Shah sued the Texas Department of Criminal Justice in July 2012, claiming it discriminated against him by laying him off from his engineer job.

Citing a court transcript, Shah said Hughes made the comments during a pre-trial hearing with the state's attorneys that neither he, nor his attorney, attended. As the state's lawyer Allan Cook argued the case is about "money," rather than about race or religion, Hughes asked what race Shah is.

Cook responded that Shah identified his race and religion as Hindu.

Hughes then asked: "All right. So he's Caucasian?"

Cook replied: "No. He's Indian."

"They're Caucausian. ... That's where we came from. ... That's why Adolph Hitler used the swastika. ... It was a symbol of good luck," Hughes said.

Later in the hearing, Cook said about Shah: "And your Honor, nobody says he's not a good person. C.F. Hazelwood will testify that he's a perfectly nice fellow. He didn't want to let him go, had to do it."

The fact that he's the only Indian there is a fact in the department's favor. It would be real easy not to hire the first Indian," Hughes replied.

Shah blasted Hughes for the comments in his recusal motion.

"First, Judge Hughes' gratuitous, uncritical reference to 'Adolf Hitler' and the 'swastika' - the architect and the symbol, respectively, of the Holocaust, the most heinous act of ethnic and religious mass murder in human history - are beyond the pale in a case of race and national origin discrimination and would lead any reasonable person to believe that Judge Hughes is, at a minimum, insensitive to victims of racial, ethnic, and religious discrimination," the motion states.

"Second, in context, Judge Hughes' statement that Indians are 'Caucasian,' and not a distinct racial minority, would cause a reasonable person to believe that Judge Hughes would not comply with the prevailing law that Indians are a protected class."

The Texas Civil Rights Project, an Austin-based nonprofit that does pro bono legal work for low-income people, asked Hughes to resign over the comments.

Hughes refused to recuse himself Friday.

In Hughes' 6-page rebuttal to Shah's motion the judge displays an academic's grasp of history and race, while pointing out that he has Indian friends.

"Shah says that this court's discussion of the swastika and 'uncritical' reference to Hitler shows that it is insensitive to victims of racial, ethnic, and religious discrimination," Hughes wrote.

"The reference to Hitler's adoption of the swastika was not 'gratuitous' or 'neutral.' It was a discussion -- or monologue -- about how a Sanskrit word for good luck became the symbol of a North-European political movement. The National Socialists of the 1930S used the swastika because of its connection to Aryan peoples who lived in Iran and northern India. The Nazis said that the Aryans -- who used the swastika - were from Nordic Europe, instead of east of the Caucasus Mountains. All of this invention or delusion was an attempt to bolster their claim that Germans were a superior race descended from pure Aryans.

"The comment was not uncritical, it was historical. Would an uncritical reference to Hitler make one a Nazi sympathizer?"

Hughes also addressed Shah's contention that his reference to Caucasians shows he does not consider Indians a protected class.

"A frank discussion of race is required in a case brought by a man claiming discrimination based on his race. Caucasian is the old-fashioned crude allocation of seven billion people into three groupings. Groups that broad may have minor geneticunity, but knowing that is inadequate for pubic decision-making. If he lost his job because of his origin, religion, or race, the law protects him," Hughes wrote.

Hughes then backtracked on his comments about Indian workers during the pre-trial conference, where the court transcript recorded him stating, "The fact that he's the only Indian there is a fact in the department's favor. It would be real easy not to hire the first Indian."

The judge defended himself with a lengthy explanation.

"If an employer were to discriminate against a class of people, it is easier to never hire someone from that class than hire them and then fire them ten years later," Hughes wrote. "That

is the point of the court's statement that it would be easy not to hire the first Indian

person in a workplace; that is how people discriminate.

"When the department's counsel said that it would be hard not to hire an Indian engineer, the court responded that that could be true if an employer hires based on merit. That was a recognition of Texas's many capable engineers with a connection to India.

"The court's asserted hostility to Indians would surprise its immigrant or first generation Indian doctors, friends, law clerk, and interns," Hughes wrote.

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