The Corner

Law & the Courts

Trump’s Attack on Judge Curiel Undermines a Key Case for His Presidency

Donald Trump is getting a lot of flack for his continued criticism of the federal judge who is presiding over his fraud trial. Per Reuters:

U.S. Republican presidential candidate Donald Trump on Monday rejected a barrage of criticism from his own party over his allegations of bias against a Hispanic judge, insisting his concerns were valid.

“All I want to do is figure out why I’m being treated unfairly by a judge. And a lot of people agree with it,” Trump said on Fox News.

Trump has been on the defensive since his comments last week about Mexican-American U.S. District Judge Gonzalo Curiel, who is overseeing fraud lawsuits against Trump University, the New York businessman’s defunct real estate school.

. . .

Trump has suggested that Curiel’s heritage is influencing the judge’s opinion about the case because of Trump’s campaign rhetoric about illegal immigration. Trump, the presumptive Republican nominee for the Nov. 8 presidential election, has pledged to seal the U.S.-Mexico border with a wall, and has said Mexico is sending rapists and drug dealers to the United States.

In recent days, a host of rightward-leaning figures have come straight out and described Trump’s attacks as “racist.” “Saying someone can’t do a specific job because of his or her race is the literal definition of ‘racism,’” argued Nebraska Senator Ben Sasse. Trump’s remarks represent the “textbook definition of a racist comment,” charged House Speaker Paul Ryan. Gary Johnson, a former Republican governor who is now heading the Libertarian ticket, went one further, telling Fox News, “The latest comments on the Hispanic judge — nothing short of racist.”

I’m tempted to agree with this characterization. Simultaneously, I don’t think it matters a great deal whether Trump is a “racist” or not. And why not? Well, because even the best case in favor of his behavior makes him look like a liability. For the sake of argument, let’s assume that, as with pretty much everything else that comes out of Trump’s mouth, his pronouncements on the questions of ethnicity and race are self-serving and expedient rather than meaningful and heartfelt. Does that somehow makes this situation better?

As far as I can see, the best argument in Trump’s favor here is that he’s not a “racist” so much as he’s using whatever pressure points are available in order to force the judge in his case to recuse himself — or, at the very least, to cast doubt on the verdict if it doesn’t go his way. But this argument only makes Trump’s conduct “better” if one cares only about racism and not at all about political propriety. Indeed, if one cares a whit about the latter, one should be deeply, deeply alarmed. As a general matter, Americans should not want a president who is happy to make outlandish comments if he thinks it’ll help him get away with fraud. But, even if they do, they should think twice about what such a man would do to their preferred political projects once he got into office. That Trump is happy to behave in this manner completely undermines one of the central arguments that is made in favor of his candidacy. Time and time again, I hear it said that Trump is needed as a bulwark against Hillary Clinton’s ambitions to remake the judiciary. Time and time again, I am told that I must put aside my differences with Trump and think of the Supreme Court. Time and time again, the integrity of the American Constitution is held above my head. But if Trump is the sort of man who will happily attack a judge in order to get ahead; if Trump is the sort of man whose idea of a functioning judiciary is one that acquiesces to his wishes; if Trump is such an unchecked bully that he is prepared to use his considerable public profile to pressure the man presiding over a case in which he is himself involved — well, then the pro-Trump argumentum ad curiam is dead in the water, is it not? Over the last few days we have seen public confirmation that if Donald Trump doesn’t like the outcome — or the potential outcome — of a live legal case, he will say anything in order to apply pressure upon its arbiters. And I’m supposed to want that in a president?

Well, I don’t. I expect such behavior from amoral bruisers such as Harry Reid. I expect such behaviour from “social justice” types who think that identity determines all. I expect such behaviour from the consequentialists and the neo-Jacobins and the unreconstructed cynics who don’t believe that there can ever be such a thing as neutral law. But I don’t expect it from the de facto head of a Republican Party that has been complaining about exactly this sort of thing for years. When President Obama called out the Supreme Court in the State of the Union, and, later, made set-piece speeches warning the justices to uphold his plans, the GOP rightly cried foul. When Sonia Sotomayor hinted that a “wise Latina” might make better constitutional decisions than a white man with different experiences, Republicans argued — correctly — that such attitudes do violence to the expectation that officers of the law will go about their business with a detached and unyielding objectivity. And now? Is all that to be thrown out of the window because the party’s primary electorate was foolish enough to hand the keys to a thug? If it is, count me out. This bully is not to be trusted any more than the others were.


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