Trump’s Racist Attacks on the Federal Judiciary

Donald Trump is, quite rightly, being excoriated for his racist attacks on the judge presiding over one of the lawsuits against Trump University. However, that criticism has been largely limited to the straightforward racism of Trump’s attacks and has, sadly, ignored his broader attack on the federal judiciary in general, his threats against judges who Trump doesn’t like, and the implications of his suggestion of conflicts-of-interest on the basis of race or other motivational interest. Trump’s attacks aren’t just limited to a particular judge; rather, he is attacking one of the co-equal branches of government and attempting to subvert its independence and ability to function. One must, therefore, wonder — if not fear — what a Trump presidency would look like were a federal judge (or the Supreme Court) to rule against Trump or a Trump policy.

Criticism of judges is fine and there is certainly a long precedent of American citizens, politicians, and elected officials doing so. One of the most famous recent criticisms of a judicial decision came from President Obama during the 2010 State of the Union speech, in which President Obama expressed his views of the recent Citizens United decision:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.

That criticism by President Obama was, itself, subject to intense debate and critique. But note that President Obama did not question the integrity of the justices or impugn their reputations or motivations. He criticized the decision and what he perceived the effects would be, but he didn’t accuse them of ruling the way that they did because of their skin color, ethnic heritage, religion, or animus to Hillary Clinton (who, if you’ll recall was the target of the video at issue in Citizens United).

Now, compare that sort of criticism to the way Trump attacked the judge presiding over a Trump University case (internal links omitted):

“I have a judge who is a hater of Donald Trump, a hater. He’s a hater. His name is Gonzalo Curiel,” Mr. Trump said, as the crowd of several thousand booed. “He is not doing the right thing. And I figure, what the hell? Why not talk about it for two minutes?”

Mr. Trump spoke for far more than two minutes about Judge Curiel and the Trump University case–he devoted 12 minutes of a 58-minute address to the litigation….

…

“We’re in front of a very hostile judge,” Mr. Trump said. “The judge was appointed by Barack Obama, federal judge. Frankly, he should recuse himself because he’s given us ruling after ruling after ruling, negative, negative, negative.”

Mr. Trump also told the audience, which had previously chanted the Republican standard-bearer’s signature “build that wall” mantra in reference to Mr. Trump’s proposed wall along the Mexican border, that Judge Curiel is “Mexican.”

“What happens is the judge, who happens to be, we believe, Mexican, which is great. I think that’s fine,” Mr. Trump said.

Judge Curiel was born in Indiana.

Mr. Trump told the crowd he looks forward to returning to San Diego for the trial in November and asked for an investigation into Judge Curiel for reasons he did not specify.

“I think Judge Curiel should be ashamed of himself,” Mr. Trump said. “I’m telling you, this court system, judges in this court system, federal court, they ought to look into Judge Curiel. Because what Judge Curiel is doing is a total disgrace, OK? But we’ll come back in November. Wouldn’t that be wild if I’m president and I come back to do a civil case? Where everybody likes it. OK. This is called life, folks.”

Recognize that this wasn’t a one-time event, either; Trump has repeated these sorts of criticisms multiple times, including this (emphasis added):

I think the judge has been extremely hostile to me. I think it has to do with the fact I'm very, very strong on the border, and he happens to be extremely hostile to me. We have a very hostile judge. He is Hispanic, and he is very hostile to me.

See a difference? President Obama criticized the decision of the Supreme Court, and discussed his concerns about the effects of that decision, but he did not suggest that individual justices were biased or “haters” and he certainly didn’t suggest that any of the justices was unable to act impartially because of race or religion. And President Obama did not offer an implicit or veiled threat against any of the justices. But Trump has done all of that and more. Repeatedly.

There has been plenty written and discussed about just how wrong and un-American are Trump’s attacks against the judge on the basis of race and ethnicity. Yet we can’t forget that Trump went even further and also claimed that Muslim judges might also be biased against him:

Mr. Dickerson asked Mr. Trump, the presumptive Republican nominee, if a Muslim judge would be similarly biased because of Mr. Trump’s call for a ban on Muslim immigrants. “It’s possible, yes,” Mr. Trump said. “Yeah. That would be possible. Absolutely.”

But rather than focusing simply on Trump’s unabashed bigotry, I want to focus first on the suggestion that race, heritage, or religion can create inherent conflicts of interest among judges. Let me begin by quoting myself in my post Addressing a Few Red Herrings (August 5, 2010) written following the original challenge to California’s constitutional ban on same-sex marriage when some argued that the judge who decided that case had a conflict-of-interest because he was gay.

Why is it that when it comes to litigation involving social issues, straight, Anglo-Protestant white males are never seen as being biased, but a judge who is black or Jewish or female or gay is biased, often for no other reason that the fact that the judge is black or Jewish or female or gay?

Or think of it this way: Must every woman judge recuse herself from a rape case? Must every Jewish judge recuse himself from a case involving church-state issues? Must every Hispanic judge recuse himself from an immigration case? Must a black judge recuse himself from every lawsuit alleging racial discrimination? And with your answer to that last query in mind, must every white judge recuse himself from a case alleging racial discrimination if one of the parties is … um … white? And, by all of that reasoning, shouldn’t any straight judge have been forced to recuse himself precisely because he wasn’t gay?

Those who argue bias of this sort are either so blinded by their own bias and bigotry or simply cannot recognize that, in order for our system to work at all, we must all have faith in the impartiality of our judiciary. That a judge disagrees with us doesn’t mean bias; it means that judge judges a particular issue differently that you or I might. It doesn’t mean bias. But if we start seeing bias in every judge solely on the basis of that judge’s color or religion or DNA, then it won’t be long before our judicial system becomes a joke and the respect for the rule of law on which the foundations of our country are supported will rot away.

Donald Trump doesn’t understand any of that. Rather, it would seem that in the America that he envisages, the only judges who can be relied upon to offer impartial rulings and justice would be judges who share race, religion, heritage, and political viewpoints with those being judged. Or maybe good Aryan (or at least male White Anglo-Saxon Protestant) judges would be exempt from being scrutinized from conflicts-of-interest because of their majority status, right? Of course one has to wonder whether that Aryan or WASP might have a predisposed bias in favor of Trump; after all, shouldn’t we expect that all whites would be supportive of his positions of wanting to keep American racially pure out Latino immigrants and those of disfavored religions? I mean, if we can presume that judges of Mexican heritage or of the Muslim faith would be biased against Trump because of his political positions, then shouldn’t we presume that those of European heritage or of the Christian faith would be biased toward Trump for the same reason? Isn’t that really the argument that he is making? As Philip Klein noted in The Washington Examiner:

Trump could just as easily be arguing that a Jewish judge is against him because he refuses to be beholden to Jewish donors. Or an American Asian judge is against him because he wants to get tough on China. Or an Irish Catholic judge is against him because of his attacks on Pope Francis. Effectively, anybody who isn't a white Protestant of European ancestry can be a target of Trump's ethnic and racial attacks.

So let’s tease out the ramifications of Trump’s argument that judges can’t be relied upon to be impartial based on their race, heritage, religion, or reactions to the political views of a party appearing before the judge. Essentially, the ramifications become quite simple: Our entire judicial system ceases to function and the rule of law, for which our system is an absolute model and light among the nations, becomes but a quaint relic of bygone days. If Americans are taught that they can’t trust the impartiality of judges, especially judges who look different or pray to a different god, then the rulings of those judges may never be accepted. People will refuse to recognize decisions from “biased” judges and those ruling may, thus, become not worth the paper they are printed on. How long before someone says, “I’m not going to follow the judge’s order because he was biased against me?” In our hyper-polarized present, how long before some legislature or sheriff buys into this sort of viewpoint?

You see, one of most important responsibilities of our elected officials is to help provide to the public the sense that our system works. Sure, there may be bumps. Politics may get ugly and messy. Judges may get things wrong and legislators may not always reflect the will of the people. Executives may direct their offices and agents to do things that some will object to. But on the whole, there remains the notion that the system as a whole works. But now we have a situation where one of the major party’s candidate for President is essentially arguing that one of the co-equal branches of the government, the same branch that we rely upon to stop the unchecked power of the executive branch, doesn’t work because of racial or religious bias. The idea of a major party candidate arguing, not that the policy goals of the other party are wrong, but that a branch of the government can’t properly function because of bias, is absolutely unprecedented. And scary.

Consider the comments of David Post, a retired law professor:

“This is how authoritarianism starts, with a president who does not respect the judiciary,” Mr. Post said. “You can criticize the judicial system, you can criticize individual cases, you can criticize individual judges. But the president has to be clear that the law is the law and that he enforces the law. That is his constitutional obligation.”

“If he is signaling that that is not his position, that’s a very serious constitutional problem,” Mr. Post said.

Then, as if all of that wasn’t enough, we also have Trump’s threat against Judge Cureil.

Wouldn’t that be wild if I’m president and I come back to do a civil case? Where everybody likes it. OK. This is called life, folks.”

I’m not really sure what Trump meant here (for that matter, Trump’s … um … creative grammar often leaves me a bit befuddled, but that’s a blog for another day), but it does seem like some kind of threat against the judge. Is Trump saying that, after the election, he would sue the judge? Or is he talking about impeachment (“where everybody likes it”)? It’s hard to know. But the notion that a candidate for President is suggesting, even implicitly, that he might try to use the power of the office to retaliate against a member of the federal judiciary should be absolutely chilling to anyone who values the functioning of our system. We need judges who are unafraid to issue difficult rulings and who aren’t influenced by the politics surrounding them. That is one of the reasons that federal judges are appointed to a lifetime term. Now we have a candidate for President who seems willing to throw politics into the functioning of the judiciary. And note that we’re not talking about a case like Citizens United that deals with constitutional issues and the election process; rather, Trump’s concerns arise from a case against one of his businesses for fraud.

In the late ’80s and early ’90s, disgruntled farmers and members of the early version of the militia movement (and later so-called “sovereign citizen” movement) began taking actions against judges (both state and federal) who, among other things, issued decrees of foreclosure. These actions often took the form of fake liens against the judges’ properties, thus making it difficult for the judges to sell or refinance their houses. Citizen “grand juries” popped up to issue “warrants” against judges. States like Indiana that fell prey to these shenanigans had to enact laws to protect judges (and others). And now Donald Trump seems to be suggesting that if he doesn’t get his way, it will once again be open season on judges … or at least on judges who don’t rule the way Donald Trump thinks that they should.

As I was thinking about this subject last night, I wondered about the precedent that Trump seems to be setting without necessarily realizing it. Think of it this way: Let’s say that I become party to a lawsuit following a traffic accident. And let’s say that the judge presiding over that case is Asian. Now, when that judge issues a ruling with which I disagree, rather than appealing that ruling or otherwise acting within the bounds of the legal system, if I follow Trump’s lead, I should argue that the judge is a “hater” who is a “disgrace” that only gives me “negative” rulings. But then, when the judge refuses to reverse course or to recuse himself, I guess I should start making bigoted anti-Asian comments after which I should argue that the judge has an inherent conflict-of-interest or bias against me because of what I’ve said. Or, to put it even more simply, if I have a judge that I don’t like, I should walk up to that judge and tell him that he is an ignorant asshole who should go fuck his mother, and then I should demand that he recuse himself because my comments and actions may have biased the judge against me. Isn’t that really Trump’s argument here? That judges of Mexican heritage will be inherently biased against Trump because of Trump’s political views? It will be nice to know that if I’m ever sued, I can use my political views to be sure that only a Democratic Jewish judge will be able to preside over my case.

I also want to touch briefly on one other red herring argument that seems to be getting some traction, namely that Judge Curiel’s membership in a Latino bar association group (note that the group to which he belongs is the San Diego La Raza Lawyers Association and not the national National Council of La Raza (an advocacy organization)) is enough to demonstrate bias and some sort of implicit reverse racism (as if by being a member of a Latino organization implies racism against non-Latinos). Of course, that argument ignores the existence of groups like the Italian American Bar Association, German American Bar Association, Chicago Irish American Bar Association, Asian American Bar Association of New York, American Catholic Lawyers Association, J. Reuben Clark Law Society (a Mormon organization), or the American Association of Jewish Lawyers and Jurists. And yes, I could go on and on. For the record, I’ve occasionally attended a luncheon (well, really an opportunity to each a Shapiro’s corned beef sandwich) under the auspices of the Jewish Lawyers Luncheon group in Indianapolis. Judges are also people. They are part of their community and that community may include their religion, their ethnic heritage, or their kids’ soccer team. But to suggest that a judge is inherently biased because he is an active member of his community is itself a sort of racist dog whistle to those who argue that the “real racists” are members of minority communities and not the white or Christian majorities.

Donald Trump can criticize judges all he wants. That’s fair. But his criticism shouldn’t — can’t — be based in racism or bigotry, it can’t — not if Trump believes in our system of government — call into question the actual functioning of the judicial branch or the belief in the rule of law, and it absolutely can’t include threats, implicit or explicit, that he will use the power of the office of the President to retaliate against judges who don’t agree to jump to Trump’s tune. Yet the continued exhortation to racism and bigotry and attacks against the functioning of our governmental system just makes ever more clear that Trump really is nothing more than a fascist. And I, for one, am not willing to risk the America that I know for the whims of an egotistical, narcissistic, racist, fascist like Donald Trump.

Please help me make sure that he is not elected President.