BY IAN MILLHISER – – – – –
Republican presidential candidate Donald Trump does not like federal Judge Gonzalo Curiel very much. It’s not hard to guess why.
Curiel presides over a trial brought by several individuals who believe they were scammed by Trump University, which allegedly used a deceptive sales pitch to sell expensive courses taught by underqualified instructors. Judge Curiel ordered testimony from former Trump University employees released to the public. It is extraordinarily damaging, with some employees saying that they were encouraged to prey upon students by pushing the students to run up massive credit card debt in order to pay for Trump University programs.
Trump responded to Curiel’s orders with a mix of anger, thinly veiled threats and explicit racism. “I have a judge who is a hater of Donald Trump, a hater. He’s a hater,” Trump told a campaign rally last week. He added that “judges in this court system, federal court, they ought to look into Judge Curiel,” and that it would “be wild if I’m president and I come back to do a civil case.”
The presumptive Republican presidential nominee escalated his attacks on the judge, telling the Wall Street Journal that Curiel has “an absolute conflict” that should prevent him from presiding over the Trump University case because Curiel, a United States citizen who was born in Indiana to immigrants from Mexico, is “of Mexican heritage.” “I’m building a wall,” Trump said. “It’s an inherent conflict of interest.”
It’s an extraordinary view on what should require a judge’s recusal. Although federal law does require judges to remove themselves from a case when their “impartiality might reasonably be questioned”, the key word in this law is “reasonably.” Trump is essentially claiming that a famous racist can force a judge off a case simply by expressing support for racist policies. Even setting aside the fact that Trump’s attack on Judge Curiel is only his latest attack on people of Mexican descent, there are obvious reasons why a litigant should not be allowed to decide which judge hears their case.
Trump’s claim that a judge’s ethnicity — or some other immutable trait about that judge — casts doubt upon the judge’s ability to judge cases impartially is not a new claim, but it’s consistently been rejected by federal courts. A law firm accused of sexism in hiring and promotions once asked Judge Constance Baker Motley, an African-American woman, to recuse from the case. Motley refused, explaining that “if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”
When litigants asked Judge A. Leon Higginbotham, who is African-American, to recuse from a case involving black union members, Higginbotham was even more blunt. White people, he wrote, “are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations.”
Justice Clarence Thomas is black. That does not require him to recuse himself from cases involving members of the Ku Klux Klan. Justice Ruth Bader Ginsburg is a woman. That does not prevent her from hearing cases involving gender discrimination.
If Trump were just a businessman who allegedly engaged in an elaborate scam, then his idea of what constitutes grounds for disqualifying a judge would be an oddity at most. But Trump is not just a private citizen, and his views could have profound implications if he becomes President of the United States. As Alexander Hamilton once explained, courts have “no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” The judiciary, Hamilton added. “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
In an interview with the New York Times’ Adam Liptak, retired law professor David Post expressed Hamilton’s views in even blunter terms: “There’s only one of those three branches that actually has the guns in its hands, and that’s the executive.”
So a President Trump who believes that Mexican-American judges are not to be trusted could withhold the means those judges need to enforce decisions. He could also refuse to obey their decisions himself. Nor is there any reason to think that Trump’s disregard for judges he disagrees with is limited to those with Mexican immigrant parents. If the Supreme Court rules against President Trump, will Trump obey the decision, or will he simply throw insults at Justice Sonia Sotomayor?