It plays into the Left’s identity-politics game, in which one’s heritage or sex determines whether one can render a fair judgment.
It turns out that Donald Trump’s legal philosophy, such as it is, is like his philosophy of everything else: Donald Trump likes judges who like Donald Trump.
That’s the simplest way to explain his ongoing rhetorical savaging of federal judge Gonzalo Curiel, who has the lamentable task, in California’s Southern District federal court, of presiding over a class-action lawsuit against the defunct real-estate “school,” Trump University.
Curiel has decided to let the case proceed to trial, so Trump has taken to attacking him in the media with race-baiting insinuations. Late last week, Curiel released 400 pages of previously sealed documents from the case. This set off a wave of stories about Trump University sales representatives’ sketchy tactics to get “students” to sink significant sums of money into the program, so it’s hardly surprising that Trump has chosen to intensify his assault. On Thursday, he stooped to explicit ethnic nationalism, telling the Wall Street Journal that Curiel has “an absolute conflict” when it comes to the lawsuit because he’s “of Mexican heritage.” “I’m building a wall,” said Trump. “It’s an inherent conflict of interest.”
It’s not, of course, and if Trump actually believes that, he’s a bigger dunce than even his most vociferous critics have surmised. More likely, Trump knows that he’s in trouble in this trial, so he found the only plausible angle he could use to prejudice his supporters against the judge.
The problem with Donald Trump, though (let me rephrase: one of the inexhaustibly many problems) is that his personal beefs become the ideological framework for hundreds of thousands, perhaps millions, of Americans. In this latest instance, for example, Trump has implied that no law can be interpreted disinterestedly and applied dispassionately. There’s really no such thing as reason; there are only inescapable tribal prejudices. Because his parents were from Mexico, Gonzalo Curiel is always going to be loyal first and foremost to Mexico, so he will never be able to render a fair decision on anything involving Donald Trump.
What follows from that is the effective end of the Anglo-Saxon legal tradition. Consider: Who could rule in Trump’s case? Trump has strong opinions about Chinese product-dumping, so it couldn’t be a judge whose family came from China. It couldn’t be a black judge, because that judge would obviously be opposed to the candidate who flirted with the Ku Klux Klan. And — to push the thought further — what single judge could fulfill Trump’s ludicrous criteria when applied to the nearly 7,000 former students who are plaintiffs in this case?
Obviously, Trump has not thought through the implications of his cheap slander, and few of his supporters will, either. But they’ll accept it, because that’s what cults do, and a growing mass of people will say that Sonia Sotomayor can’t fairly decide immigration cases because she’s Hispanic, and Sri Srinivasan can’t fairly decide cases involving Christians because he’s Hindu, and Merrick Garland can’t decide cases involving money because he’s Jewish.
This is already the direction in which the Left is headed. Following the Burwell v. Hobby Lobby decision, which struck down Obamacare’s contraception mandate for closely held companies, Harry Reid declared that “women’s lives” were not going to be governed by “five white men” — men apparently being unable to rule on matters of law pertaining to women. Left-wing commentators made a similar argument after the Shelby County v. Holder decision in 2013 striking down a portion of the Voting Rights Act: White people are incapable of making responsible decisions about laws that involve black people.
A person’s birthplace or bloodline or bone structure or sex does not dictate his capacity to exercise reason in the service of making fair and informed judgments.
For more than half a century, conservatives have been combating this cheap reduction of the law to the color of skin or the slant of eye or the spelling of the name of the judge making the decision. A person’s birthplace or bloodline or bone structure or sex does not dictate his capacity to exercise reason in the service of making fair and informed judgments. But Trump, unthinkingly, has avowed just the opposite and pushed a mass of his followers to follow suit. In yet another realm, he has come down on exactly the opposite side of genuine conservatives.
On Friday afternoon, Trump doubled down on his attacks. “We’re building a wall,” Trump told CNN. “He’s a Mexican.”
No, Donald, he’s American. During the time when Trump was advertising his (first) divorce in the New York City tabloids and trying to strong-arm an elderly widow out of her home to make way for a casino parking lot, Curiel was a federal prosecutor in California, working to bring to heel Mexican drug cartels who were pushing their operations into the United States. For much of a year in the late 1990s, he was forced into hiding when a gunman with the Arellano Félix cartel admitted that he “had requested and received permission from the leaders of the Arellano cartel to have Curiel murdered.” The closest Trump has come to putting his life on the line for America is risking STD infection as a young man during his “personal Vietnam.”
Now, Trump is using his bully pulpit to slander Curiel — and in the process undermining the notion of an impartial rule of law. The country and Judge Curiel deserve better.