Why equating ethnicity with judicial bias is so offensive
Donald Trump keeps giving his political opponents ammunition, most recently with his continuing attacks on Judge Gonzalo Curiel, who is presiding over lawsuits against Trump University. But it’s important to distinguish between what is merely obnoxious and the truly odious in his remarks.
Mr. Trump has repeatedly attacked the judge as “unfair” and “a hater.” He has also threatened a civil case against the judge if he becomes President, adding that because Judge Curiel is “of Mexican heritage” he has “an inherent conflict of interest.” The media have offered Mr. Trump opportunities to retreat, but he keeps insisting that ethnicity disqualifies the judge from ruling fairly because the Republican favors building a wall at the U.S.-Mexican border.
Democrats and their media allies are trying to portray this as an attack on “judicial independence,” but criticizing the judiciary is neither new nor beyond the pale. Perhaps they’ve forgotten that President Obama slammed the Supreme Court for its Citizens United ruling in 2010 while the Justices were a captive audience during the State of the Union address.
Mr. Obama also contributed to the Democratic intimidation campaign against Chief Justice John Roberts ahead of the 2012 ObamaCare ruling. “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” the President said at an April 2012 press conference. The Chief Justice ruled as the President recommended.
We and others criticized those attacks on the judiciary at the time. If our great progressive moralists were outraged, we must have missed it. However, the left has long wanted to make progressive judges off-limits to political criticism, which explains the attempts to conflate Mr. Trump’s comments with criticizing any judge ever.
Mr. Trump is attacking Judge Curiel in a personal business case, not a political one, and as a candidate for President we think he should be above this kind of pettiness. His implied threat against the judge if he becomes President is more obnoxious, though we doubt he could do much about it in office. The political blowback would rightly be enormous.
What elevates Mr. Trump’s remarks to the reprehensible is his equation of ethnicity with bias. That truly is an attack on the independence of the judiciary because it means that a judge can be disqualified from a case merely for his personal background, rather than for any material conflict of interest.
The suit against Trump University is a classic civil fraud case that has nothing to do with ethnicity. Judge Curiel happens to be an American born in Indiana to immigrant parents, but that is of no legal import. He shouldn’t be judged by the ancestry of his parents any more than Chief Justice Roberts should be barred from ruling on religious liberty cases like the Little Sisters of the Poor because he is a Roman Catholic.
As a legal matter this is well established, notably in a 1998 case (MacDraw v. CIT ) in the Second Circuit Court of Appeals. A litigant challenged the fairness of Judge Denny Chin due to his ethnicity. Judge Chin responded by slapping down the complaint and sanctioning the lawyers, and he was backed by the appellate judges. “Courts have repeatedly held that matters such as race or ethnicity are improper bases for challenging a judge’s impartiality,” wrote Judge Ralph Winter, a highly regarded conservative appointed by Ronald Reagan.
Apart from his racist implications, Mr. Trump is also indulging in the left’s habit of attributing the motivations of everyone and everything to race, class, gender and sexual orientation. Claiming that a person’s judgment is determined by his objective circumstances is a Marxist trope. Isn’t Mr. Trump supposed to be running against such thinking?
The hopeful news is that Mr. Trump’s attack on Judge Curiel’s ethnicity has been widely denounced, notably by senior Republicans including House Speaker Paul Ryan and Majority Leader Mitch McConnell. Unlike many of our outraged progressives, they are politically consistent. As for Mr. Trump, he should let his lawyers argue his civil case, apologize to the judge, and start talking about the economy.