The latest gaffe in the election cycle that just will not end is just the latest in a series of inflammatory statements from Republican candidate Donald Trump. But like all other things Trump 2016, it’s been building for a while.
The long and short of it is that Trump, whose Trump University program is under investigation for shady practices, took to the media last week when he felt the judge was being unfair to his case. Or, as some believe it actually is, put on his latest bit of political theater to appeal to voters, by calling out U.S. District Judge Gonzalo Curiel, who is of Mexican descent, for being biased against his case.
“We’re building a wall. He’s a Mexican. We’re building a wall between here and Mexico. The answer is, he is giving us very unfair rulings,” said Trump, who has since doubled and tripled down on his comments.
His comments have been widely hailed as racist, bigoted, and ill-informed, even by those in his own party. But the truth is, his comments have a much more negative affect, and have been a long time coming.
Photo Credit: Nathan Congleton cc
The idea at the core of what Donald Trump is saying is that any judge who’s coming to the bench with a background different too different from that of the “traditional” lawyer—historically, anyone who wasn’t a straight white man—is coming to their decisions with undue bias. Ignoring that every person comes to the bench with a lifetime of experiences that shape what they consider to be a reasonable person’s understanding of the law, Trump’s statements are not just bigoted, they’re ignorant of over a century of law, as Ken White writes for Popehat:
That “might reasonably be questioned” is awfully broad. Doesn’t that mean Trump is right?Only if you pretend the last century of law didn’t happen. Federal courts have ruled many, many times about what is a “reasonable” question and what isn’t. “Reasonableness” is defined in the context of some fundamental assumptions about the legal system — especially that judges generally won’t act like sectarians based on their race and religion. Moreover, courts recognize that all judges had lives before becoming judges, and those lives necessarily involved a wide range of affiliations. Plus, the test is based on the perception of a reasonable person, a “well-informed, thoughtful, and objective observer, rather than the hypersensitive, cynical, and suspicious person.” So. Not a Trumpalo, not a Clintonista.So Trump’s argument that a “Mexican” can’t hear is case is bogus?Beyond the shadow of a doubt based on a century of law. Many courts have considered and rejected the argument that a judge of a particular ethnicity, gender, or religion is inherently biased because of the nature of the case. In fact, the argument has been so repeatedly and thoroughly rejected that it’ssanctionable to make it.
As White summarizes in his post, bias has to be extrajudicial; knowledge stemming from an inappropriate source and not the facts of your case. Close personal relationships, past or pending job offers, those are the sorts of things that can force a recusal. But federal courts have rejected arguments that a judges’ impartiality could be reasonably questioned based on past works, membership groups, or political views. For Trump (et. al) to claim that Judge Curiel’s membership to the Latino Bar Association of California (let alone dishonestly conflate that with a political advocacy group) is no more grounds for recusal than membership to a religious organization is.
So why does it suddenly seem like people are coming out of the woodwork to claim it does? Well, as the meme goes, Thanks Obama.
Throughout his term, the President has been making an attempt to change the face of the federal judiciary. Going into his second term, he nominated the first publicly-gay black male federal judge to a court in Florida, the first Asian American lesbian judge out publicly to a New York court, and the first South Asian judge to the D.C. Circuit. Heck, even before that he had nominated Sonia Sotomayor, who would become the first Hispanic on the Supreme Court. Though the 900 federal judges in the U.S. are still largely white men, Obama’s actions were deliberately trying to change that.
“Diversity in and of itself is a thing that is strengthening the judicial system,” then-White House Counsel Kathryn Ruemmler told The Washington Post. “It enhances the bench and the performance of the bench and the quality of the discussion . . . to have different perspectives, different life experiences, different professional experiences, coming from a different station in life, if you will.”
And sure, it may be far too soon to judge the record of these judges. But it’s no small feat that the 327 judges that Obama has nominated there’s been a conscious effort to diversify. Of course, not all nominees are created equal, and as NPR noted in 2011, women or minority nominees often faced a different Senate than their white, male counterparts—a literal confirmation bias, like Judge Culier.
“For women and minorities, it’s just been a bigger hill to climb before they actually get a vote,” Caroline Fredrickson, who leads the American Constitution Society, told NPR in 2011. “And so for whatever the reasons, the facts speak for themselves.”
That’s why when Trump continues to stand by his words by going further and saying that a “it’s possible” a Muslim judge would also be biased against him isn’t just wrong, it’s misleading. Whites and men are disproportionately represented among District Court judges—and there isn’t a single Muslim judge in the U.S. federal court system. Trump’s attacks represent the sort of virulent xenophobia and racism he’s become known for, and they’re doing it in the face of a changing system. And though fellow Republicans may disavow his statements, their continual endorsement of the candidate says that while they’re publicly saying his statements are unacceptable, it’s actually the opposite. The long-fought for and record-breaking push from President Obama would be an acceptable loss for a Trump presidency. And for anyone who’s not a white male, that’s a dangerous notion to entertain.
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