Some conservative media figures are still backing up presumptive Republican presidential nominee Donald Trump’s absurd argument that a federal judge overseeing the lawsuit against Trump University supposedly has a conflict of interest due to being “Mexican” or because he is a member of a Latino Bar Association group, saying Trump’s claim is not “a stretch,” is not “unreasonable,” and that the judge “is all too willing to associate himself with his ethnicity.” However, long-standing legal precedent has repeatedly ruled out a judge’s race or ethnicity as valid grounds for recusal.
Trump Claims Trump U. Judge Has “Conflict Of Interest” Due To His Ethnicity
Trump: Federal Judge Is “Mexican” And A “Hater.” Donald Trump has repeatedly lashed out at the federal judge, Gonzalo Curiel, who is overseeing a fraud lawsuit against Trump University. The attacks reportedly began at a May 27 campaign rally, where Trump called the American judge a “hater” before falsely claiming he is “Mexican” based on his heritage. From a May 28 Politico article:
Over the course of 12 minutes, Donald Trump used a campaign rally in San Diego on Friday night to lace into the judge overseeing a lawsuit over Trump University, calling him a “hater” and speculating about his ethnicity.
“The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily,” Trump said. “Everybody says it, but I have a judge who is a hater of Donald Trump, a hater. He’s a hater. His name is Gonzalo Curiel.”
Several lawsuits — two in federal court in San Diego and one in state court in New York — allege that Trump’s now-defunct real estate school, Trump University, made false claims about instructors’ experience. Trump has already acknowledged in a deposition that he did not hand-pick the teachers, as marketing materials claimed, though he insists the program was valuable.
At Friday night's rally, he got more specific, telling the crowd he believes Curiel — who was born in the United States — is Mexican.
“The judge, who happens to be, over we believe, Mexican, which is great, I think that’s fine,” Trump said, according to the LA Times. “You know what? I think the Mexicans are going to end up loving Donald Trump when I give all these jobs, OK?”
Curiel, who was appointed to the U.S. District Court in November 2011 by President Barack Obama, previously served as a Superior Court judge in San Diego and, for 17 years prior to that, as a federal prosecutor. He was born in East Chicago in 1953 and earned his J.D. in 1979 from the Indiana University School of Law. From 1999-2002, Curiel headed the Narcotics Enforcement Division for the Southern District of California, where he prosecuted drug smugglers working across the U.S.-Mexico border. [Politico, 5/28/16]
Trump: Judge Biased Because Of “Mexican Heritage.” Donald Trump followed up his attacks on Curiel when he told The Wall Street Journal that the judge, who was born in Indiana, had “an absolute conflict” of interest in the case because of his “Mexican heritage.” From a June 3 Wall Street Journal article:
Donald Trump on Thursday escalated his attacks on the federal judge presiding over civil fraud lawsuits against Trump University, amid criticism from legal observers who say the presumptive GOP presidential nominee’s comments are an unusual affront on an independent judiciary.
In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said. [The Wall Street Journal, 6/3/16]
Conservative Media Figures Back Claim Of “Mexican” Bias, Complain That He Has Ties To Latino Bar Association Group
Fox’s O’Reilly: Judge Should “Recuse Himself” Due To Association With Latino Lawyer Group. Fox News host Bill O’Reilly claimed Judge Curiel “should recuse himself” in order to “eliminate any doubt as to the motivation in court rulings” because Curiel belonged to a Hispanic Bar Association group that “does advocacy work on behalf of Latinos.” As described by O’Reilly, this rendered the judge biased, as the presumptive Republican nominee “has taken a strong stand against illegal immigration, includ[ing] building a border wall.” From the June 6 edition of Fox News’ The O’Reilly Factor:
BILL O'REILLY (HOST): Although appointed by Barack Obama, Judge Curiel is no raging liberal. In fact, he is a tough guy. At one point a Mexican drug cartel threatened to assassinate him because of his anti-drug trafficking stance. However, the judge belongs to a group called San Diego La Raza Lawyers Association, which does advocacy work on behalf of Latinos. It's not associated with the radical La Raza group, but confusion is understandable.
Because of that, Mr. Trump apparently believes the judge may be biased against him, as it is well-known the candidate has taken a strong stand against illegal immigration, include building a border wall.
Summing up, the Trump U. case is certainly political to some extent, and it's a very high profile situation. Because of that, Talking Points believes the judge should recuse himself. Not because he did anything wrong, he didn't, but to eliminate any doubt as to the motivation in court rulings.
There are plenty of federal judges that could immediately step in. It is valid that some may see any recusal as caving to intimidation. But stark justice in a case this important, trumps, pardon the pun, any theoretical argument. [Fox News, The O’Reilly Factor, 6/6/16]
Fox’s Hannity: Not “A Stretch” For Trump To Think Judge May Not Be “Favorable Towards” Him. Fox host Sean Hannity said “I don't think that's a stretch” for Trump to allege Curiel may “not be favorable towards” him because Curiel was connected to a lawyers' group that had the Spanish words “La Raza” in it’s name and reportedly did work on behalf of undocumented immigrants. From the June 6 edition of Premiere Radio Networks’ The Sean Hannity Show:
CALLER: Well I just wanted to say that I agree with you that Trump does have a way of getting the message out in very small words. He'll say that this judge was a Mexican, but he meant all of that other stuff that you talk about. The thing that's going on I believe right now is that the minorities are just taking this to the extreme. Anytime that their, you got their minorities, I sit here, whatever, is mentioned, they want to take offense. Am I supposed to go down and say, “Hi, I'm a white man?” Or are you supposed to know what I mean?
SEAN HANNITY (HOST): No, I just think that if a -- why is a judge connected to a lawyers' group called “the race?” Why is that website help illegal immigrants and why would it be a stretch to say a lawyers' group that has “the race” in its title and email links to help illegal immigrants, that they might not be favorable towards Donald Trump, who is very well known on his position about illegal immigration? I don't think that's a stretch.
CALLER: Yeah, I don't think it's a stretch at all. And I think that Trump is exactly right that there could be a conflict of interest here and --
HANNITY: But I think he was inarticulate in how he made his argument. I think he should have made his argument going through the details as I have.
CALLER: Well then they're going to use soundbites. And they're just going to say, “OK, he said this.”
HANNITY: It has nothing to do with the fact that the judge has Mexican parents, it has to do with the judge’s position and the judge’s relationship to this potentially radical group, and the judge’s appointments of lawyers from a law firm that give heavily to the Clintons. [Premiere Radio Networks, The Sean Hannity Show, 6/6/16]
Breitbart News: Trump Not “Unreasonable” To Think Judge Might Be “Biased Against” Him. Breitbart News’ Joseph Murray wrote that Trump was not being “unreasonable” “to suggest that a judge belonging to a group pledging to advance Latino interests might be biased against” him due to his policy positions. Added Murray, “Trump is merely asserting that a person’s heritage does not foreclose a proper inquiry into their political activism and potential biases.” From a June 6 article:
Trump’s suggestion that a Hispanic judge may treat him unfairly because of Trump’s border security proposals, such as the wall, challenges the claim that liberal judges engaged in identity politics are never biased against non-liberals. And while Democrats were enraged by Trump’s challenge, Trump struck fear into the hearts of establishment Republicans not accustomed to challenging the politically correct code to which they have previously surrendered.
But what exactly had Trump done wrong? How was it unreasonable to suggest that a judge belonging to a group pledging to advance Latino interests might be biased against the man who wants to build the wall that hinders the interests of Latino politicians?
Judge Curiel’s integrity is not being questioned by Trump just because of his Hispanic heritage. Trump is merely asserting that a person’s heritage does not foreclose a proper inquiry into their political activism and potential biases; he is suggesting that Curiel – a man who supports awarding an illegal alien a scholarship – might not view favorably a man who wants to deport the said scholarship recipient. [Breitbart News, 6/6/16]
Alex Jones: Judge Is “The Equivalent Of A Hispanic Grand Dragon.” Radio host Alex Jones claimed the judge “is worse than what Trump's saying” and said Trump needs to “go further” than claiming that the judge’s “loyalty is to Mexico.” Jones also called Curiel “the equivalent of a Hispanic grand dragon.” Trump ally Roger Stone agreed, calling the judge a “Mexican radical.” From the June 4 edition of Genesis Communication Networks’ The Alex Jones Show:
ALEX JONES (HOST): Today, we are going to look at this judge who has been ruling basically against [Donald] Trump and doing unprecedented things in the Trump University case. And I'll be honest with you, I've kind of ignored Trump University to a certain extent -- I've done some research. But after Trump came out and said this guy is a Mexican, and by Mexican his loyalty is to Mexico. And so, I did some research and found out wow, Trump needs to go further here. This guy is the head lawyer over a lawyer group based in California, that for decades has been promoting, basically, race-based brainwashing.
Now, I don't like the Ku Klux Klan, but MEChA [Movimiento Estudiantil Chicanx de Aztlán] and La Raza and organizations like this ... these guys basically operate just like the Klan. They say for those inside our race, everything. For those outside the race, nothing. La Raza means “the race,” so I see Trump say this about this judge, and I think well you're just saying because he's Mexican in his heritage that he ruled against you. Has Trump gone too far? And I go look it up, and the guy is worse than what Trump's saying. And that's the problem, Trump will just throw something out that's true, but then I guess with the soundbites not get into the whole background of it. So, we're going to talk about this judge a little bit right now, but I'll tell you it's a fair headline to say that this judge is the equivalent of a Hispanic grand dragon.
I just hope Trump unloads on him, like this Daily Caller article “Judge Presiding Over Trump University Case Is A Member Of La Raza.” And again, that means “the race.” People say, well, that's okay because Hispanics can say we’re a racial group, but whites if you say we're in a racial group that's bad. No, when people organize politically and say “we're only for our group,” classically liberal views are that's dangerous and bad, a la Adolf Hitler. Roger Stone, what do you have to say?
ROGER STONE: Well, Alex, I think first of all that it's important to establish that the judge is not only a Mexican radical. He's also a Hillary Clinton contributor. [Genesis Communication Networks, The Alex Jones Show, 6/4/16]
CNN’s Jeffrey Lord: Judge “Seems” To Have “A Serious Ethnic Axe To Grind.” CNN contributor and American Spectator contributing editor Jeffrey Lord wrote that Curiel was part of a Latino group that “proudly boasts that the sole reason for their existence is … their ethnicity.” Lord added that Curiel “is all too willing to associate himself with his ethnicity” and that Trump is “more than justified in being wary of a judge deciding his case with what seems to be a serious ethnic axe to grind.” From Lord’s May 31 American Spectator post:
Who is the “California federal judge” who not only granted “class certification” to the lawsuit against Trump — but then assigned the two law firms now involved with the case?
That would be Gonzalo Curiel. Who is he? Trump has gotten flak for referring to Curiel’s Mexican heritage (he was born in Indiana). Yet right here the San Diego La Raza Lawyers Association is making a point of honoring Curiel for “his leadership and support to the community and to our Association!” — exclamation point theirs. The “community” in question is not the San Diego community of all ethnic groups, races, and genders who happen to be lawyers.
In other words? The group that honored Curiel, an Obama appointee (and campaign contributor to House Democratic Conference Chairman Xavier Becerra) proudly boasts that the sole reason for their existence is — their ethnicity. They are not about “the cause of equality, empowerment and justice” for all San Diego attorneys regardless of ethnicity. They are quite boldly only for these things when they concern, their words, “Latino attorneys and the Latino community.” And clearly they see Judge Curiel as one of their own. And apparently the Judge agrees. In other words, when Donald Trump points out the judge’s ethnicity “happens to be, we believe, Mexican,” at a minimum the judge himself is all too willing to associate himself with his ethnicity, eagerly accepting an award citing his willingness to give “support to the (Latino) community and to our (Latino) Association!” If the Judge himself goes out of his way to make certain everyone knows he is Latino — is not Trump more than justified in being wary of a judge deciding his case with what seems to be a serious ethnic axe to grind? [The American Spectator, 5/31/16]
Trump’s Race-Based Claim Violates Precedent
The Atlantic: Federal Judges Have Condemned Questioning A Judge Over Race Or Ethnicity As “Improper.” The Atlantic’s Garrett Epps pointed out that numerous federal judges in the past had ruled that challenging a judge’s impartiality based on race or ethnicity was not a valid legal claim, noting “any second-year law student who has remained awake during professional-responsibility class” would know this fact. Epps quoted a Reagan-appointed federal judge’s opinion that “matters such as race or ethnicity are improper bases for challenging a judge's impartiality.” From the June 5 article:
There’s a U.S. Second Circuit judge, Denny Chin, who might be able to set Donald Trump straight on his allegations against the district judge Gonzalo Curiel—but so could any second-year law student who has remained awake during professional-responsibility class.
The Second Circuit briskly affirmed Chin’s order. “Courts have repeatedly held that matters such as race or ethnicity are improper bases for challenging a judge's impartiality,” wrote the chief judge, Ralph Winter, a Reagan appointee. “Nor should one charge that a judge is not impartial solely because an attorney is embroiled in a controversy with the administration that appointed the judge. … Finally, appointment by a particular administration and membership in a particular racial or ethnic group are in combination not grounds for questioning a judge's impartiality. Zero plus zero is zero.”
A related misconception is that the impartiality of minority judges is inherently suspect. As David Graham noted, in the 1970s, this Trump-style claim of “inherent” bias was thrown at the great Leon Higginbotham, who rose to be chief judge of the Third Circuit. Higginbotham, an expert of the history of race and American law, crisply denied the motion:
“By that standard, white judges will be permitted to keep the latitude they have enjoyed for centuries in discussing matters of intellectual substance, even issues of human rights and, because they are white, still be permitted to later decide specific factual situations involving the principles of human rights which they have discussed previously in a generalized fashion. But for black judges, defendants insist on a far more rigid standard, which would preclude black judges from ever discussing race relations even in the generalized fashion that other justices and judges have discussed issues of human rights.” [The Atlantic, 6/5/16]
Slate: Trump’s Argument Has “Long Been Laughed Out Of Courts.” Slate’s Dahlia Lithwick noted that using “a judge’s ethnicity or race alone has been rejected for decades as a basis for demanding formal judicial recusal” and that Trump’s argument has “long been laughed out of courts.” Lithwick added that Trump’s argument is a “threat to the very principle of an independent judicial branch.” From the June 6 article:
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. [Slate, 6/6/16]
NY Times Editorial Board: Federal Judges Have “Repeatedly And Emphatically” Refused Recusal Due To Race Or Ethnicity. The New York Times’ editorial board noted that federal judges “have repeatedly and emphatically refused to recuse themselves from cases because of their race or ethnicity.” The board added that a recusal challenge from Trump on these grounds “would make judges vulnerable to recusal motions — for reasons of race, ethnicity, gender or religion — in every case that came before them.” From the June 6 editorial:
Federal judges have repeatedly and emphatically refused to recuse themselves from cases because of their race or ethnicity. These rulings were driven by two realizations: Ethnically based challenges would reduce every judge to a racial category, which would be racist in itself. And such challenges would make judges vulnerable to recusal motions — for reasons of race, ethnicity, gender or religion — in every case that came before them.
In other words, once these challenges were allowed, there would be no end to them.
The gravity of this matter has clearly eluded Donald Trump, who has cast aside the Constitution and decades of jurisprudence by suggesting both ethnic and religious litmus tests for federal judges. These pronouncements illustrate that Mr. Trump holds the rule of law in contempt. [The New York Times, 6/6/16]