Federal judges have repeatedly
and emphatically refused to recuse themselves from cases because of their race
or ethnicity. These rulings were driven by two realizations: Ethnically based
challenges would reduce every judge to a racial category, which would be racist
in itself. And such challenges would make judges vulnerable to recusal motions
— for reasons of race, ethnicity, gender or religion — in every case that came
before them.
In other words, once these
challenges were allowed, there would be no end to them.
The gravity of this matter has
clearly eluded Donald Trump, who has cast aside the Constitution and decades of
jurisprudence by suggesting both ethnic and religious litmus tests for federal
judges. These pronouncements illustrate that Mr. Trump holds the rule of law in
contempt.
Mr. Trump started down this road
months ago, attacking a federal judge in California who is
hearing a lawsuit against the now-defunct Trump University. Last week, he asserted that the judge,
Gonzalo Curiel, had an “inherent conflict of interest” because he was “of
Mexican heritage.” Mr. Trump implied that Judge Curiel — an American, born in
Indiana — was biased against him because he intended to build a wall along the
border to stop illegal immigration.
Republican leaders repudiated
the remarks and hoped that the issue would disappear. But Mr. Trump went
further on Sunday, when he said on the CBS News program “Face the Nation” that a Muslim judge might be
similarly biased against him because he has proposed a ban on Muslim immigrants
entering the United States.
When the interviewer, John
Dickerson, reminded Mr. Trump that this country has a tradition of not judging
people based on heritage, the presumptive Republican nominee responded, “I’m
not talking about tradition, I’m talking about common sense.”
Republicans who say they
disagree with Mr. Trump’s racialist statements have tried to assuage the public
by arguing that he doesn’t really believe those views. But if that’s the case,
it is pretty cold comfort. Cynically choosing to equate ethnicity with bias is
hardly more appealing than simply being ignorant or bigoted.
Let’s indulge Mr. Trump for a
moment and consider what the court system would look like if litigants were
permitted to wish away judges who had been born into immigrant families or
families that practiced what the litigants regarded as the wrong faith.
Would exclusion be limited to
first-generation Americans like Judge Curiel, who was born to Mexican immigrant
parents, or would it be extended to his children, his grandchildren or even
beyond? Would the exclusion of Muslims be limited to active practitioners of
the faith or extended to descendants who were only vaguely religious or not
religious at all? The answer, of course, is that once it started, the ethnic
cleansing of the court system could be made to apply to any unpopular group at
any time.
Mr. Trump is essentially
arguing that his own bigoted attitude toward Mexicans has disqualified a
respected jurist from hearing a court case in which he is a defendant. Under
that bizarre logic, he could rationalize ruling out judges from every
demographic group he has insulted or happens not to like. At the rate he’s
going, there would soon be no person in the land left to judge him. Fortunately, the American legal system doesn’t work
that way.
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