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Let’s start by agreeing on this: No truly sane person can defend Donald Trump’s vile, racist slander against Gonzalo Curiel. The Southern California federal district judge is currently presiding over two class-action lawsuits filed by former students against the presumptive Republican presidential nominee’s Trump University. The “University” and Trump are on the hook for allegedly using predatory marketing practices to sell worthless real estate classes. Last week, Curiel ordered documents containing damaging statements from former Trump University employees released to the public. The documents were damning. Grifters gonna’ grift.
Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.
Trump responded in a fashion that conforms perfectly to his usual methods. First he accused Judge Curiel of being “a hater.” Then he claimed that Curiel, “happens to be, we believe, Mexican,” which not only carried racist overtones but was also wrong—Curiel was born in Indiana to parents of Mexican descent. Trump then warned “judges in this court system … ought to look into Judge Curiel,” implying that he was guilty of some kind of systematic misconduct. Then on Thursday, Trump issued the coup de grace, arguing that Curiel had “an absolute conflict” in presiding over the litigation because he was “of Mexican heritage” and a member of a Latino lawyers’ association. Trump insisted that the racial background of this American-born judge was relevant because “I’m building a wall. It’s an inherent conflict of interest.”
Faced with the chance to walk back the statement this weekend, Trump walked it gleefully forward. The former reality TV star told John Dickerson on Face the Nation it was “absolutely possible”—based on religion alone—that a Muslim judge would also be unable to treat Trump the litigant fairly.
He may not have acknowledged it as such but Trump has gone beyond racist dog whistles into overt racism here. The use of a judge’s ethnicity or race alone has been rejected for decades as a basis for demanding formal judicial recusal. It’s also a threat to the very principle of an independent judicial branch—one that happens to align perfectly with his party’s wider assault on the judiciary in the Obama era. The same GOP leadership calling Trump out as inappropriate today have been pulling modified versions of this stunt for years.
Arguments of the sort Trump has proffered have been long been laughed out of courts. Despite multiple sad efforts to conflict out black and female judges in discrimination cases in the late 1970s and ’80s—and more recent efforts to conflict out a gay judge in a marriage equality case—courts have consistently ruled judges are no more inherently biased if they are black, or female, or gay than they would be inherently fair if they were white, or male, or straight.
But unlike the lawyers who tried to bounce black and female judges from civil rights cases, Trump isn’t trying to toss Judge Curiel off a case about race. He’s declaring that no judge from any ethnic or racial background Trump has insulted can ever hear any case involving him. Going forward, the only judges Trump might consider “fair” would presumably be the thrice-married, philandering bigoted kind, which has to be a somewhat limited pool. This isn’t just racism. It attempts to turn the victims of Trump’s racism into the de facto racists in order to try to gain a more sympathetic judiciary.
All those Trump supporters who believe they have him on a short leash are again learning otherwise. House Speaker Paul Ryan, who only just endorsed Trump on Thursday, said Friday that he couldn’t disagree more with Trump’s attacks on Curiel. Senate Majority Leader Mitch McConnell and former House Speaker Newt Gingrich also decried the remarks. Trump has already called the criticism by Gingrich, who had previously been angling for a VP spot on Trump’s GOP ticket, “inappropriate.” He clearly will not be brought to heel.
Note that Curiel himself has not responded. For all sorts of structural reasons, members of the judiciary cannot defend themselves against political attacks whether they happen in campaign speeches or attack ads. The code of conduct that governs federal judges bars them from making “public comment on the merits of a matter pending or impending in any court.” So as a sitting federal judge, Curiel cannot publicly defend himself against Trump’s racism, although in his order unsealing the Trump University documents he did note that Trump had “placed the integrity of these court proceedings at issue.”
The playing field is thus tilted heavily in favor of the open mic for the racist bully (even without an assist from former Attorney General Alberto Gonzales over the weekend). That doesn’t change the fact that Trump’s comments are not only racist and xenophobic, they are profoundly destabilizing to the notion of an independent judicial branch.
This shouldn’t surprise anybody. It is of a piece with how Trump has acted in the past, labeling any perceived foe as being inherently “unfair” to him and submitting himself only to the rule of law when he approves of it. Adam Liptak had a great piece in the New York Times detailing the myriad threats Trump poses to the very notion of an independent judiciary and the rule of law. Short version: Trump thinks of his judges as his plumbers; they serve his agenda or they get fired.
But here’s the larger issue the Republican nominee’s attacks on Judge Curiel highlights: It is actually a part and parcel of a broader GOP assault on judicial independence that predates Trump and transcends the recent racism directed at Curiel.
Consider for a moment Senate Republicans’ continued refusal to confirm Obama nominees for the lower courts. The vacancy rates at federal trial courts are now nearly double those at this point in George W. Bush’s presidency. The number of federally designated “judicial emergencies,” signifying especially heavy district court caseloads or lengthy vacancies, is similarly twice what it was at this time in the Bush Administration. As retired federal judge Shira A. Scheindlin noted in a May op-ed in the New York Times, this kind of Senate obstruction “undermines public trust in the impartiality and legitimacy of the judiciary.”
Moreover, do Trump’s smears of Judge Curiel differ all that greatly from Senate Republicans’ refusal to even hold a hearing for Merrick Garland for a Supreme Court seat that has been vacant nearly four months? Sure, nobody on the Senate Judiciary Committee is calling Garland a biased Mexican. But the baseless, one-sided campaign to discredit a respected federal judge they once praised as moderate and well-qualified is just as damaging as Trump’s personal vindictiveness. Consider McConnell taking to the airwaves to denounce Judge Garland as a dangerous pick. Or consider the pro-gun groups who have spent small fortunes to baselessly attack him as rabidly opposed to Second Amendment rights. Going after a sitting judge because you don’t like the groups he belongs to or the president who tapped him is not a blood sport for Trump alone. Think about what these vacancies mean for the judiciary. Then go back and reflect that Trump’s race-based attacks on Curiel sound awfully familiar to those of us who remember the attacks on Justice Sonia Sotomayor at her confirmation hearings.
To be fair, what Senate Republicans are doing to the judiciary isn’t as ugly as what Trump said. But the damage to an independent judicial branch is as real. The claim that any judge who doesn’t work for my partisan interests isn’t a real judge? That didn’t start with The Donald and it isn’t limited to Curiel. The same Republicans condemning their presidential candidate for going too far on Curiel should admit their actions this past spring have also destabilized and undermined the federal judiciary in ways that are no less shabby, or consequential.
Don’t believe that Trump’s ideas about suppressing, belittling, and controlling federal judges are unique. He differs in the racist rhetoric he uses and the depths he is willing to go to, but he’s part of the ongoing war on the judiciary itself that is waged every single day by Senate Republicans.