Donald Trump has famously contended that a federal judge cannot impartially adjudicate a case involving Trump because the judge’s ethnic background is not French, German, or Italian, but Mexican. According to Trump, the judge has an inherent conflict of interest because of his Mexican heritage.
This breathtaking racist display has rightly been condemned, but there is a germ of truth (but just a germ) in his statement that I want to mention. Suppose for a moment, that we focus on the selection of jurors. It is unconstitutional for attorneys to use preemptory challenges when they exclude jurors on the exclusive basis of race or gender. The Court has referred to impermissible stereotypes. Nonetheless, as Justice O’Connor observed in J.E.B. v. Alabama ex rel. T.B., “[O]ne need not be a sexist to share the intuition that in certain cases a person’s gender and resulting life experience will be relevant to his or her view of [a] case.” The same is true of race.
Indeed, affirmative action is based in substantial part on the premise that people of varying racial and ethnic backgrounds will bring diverse perspectives to the classroom. Moreover, every political prognosticator (except Donald Trump) expects Latinos and Latinas to overwhelmingly vote against Trump in the general election. These expectations are not racist; they are not unrealistic stereotypes.
So too, it is likely that Judge Curiel has an unfavorable opinion of Donald Trump. Most people do. And that unfavorable view might be substantially grounded by the relationship between the Judge’s ethnic background and Trump’s repeated racist comments. It is comical that Trump assails the Judge’s ability to be impartial because of his ethnic background while saying that most persons with the same ethnic background love him and will be voting for him in the general election. What is really going on here, of course, is that Trump is attempting to distract from his fraudulent conduct by attacking the credibility of the judge who says his case needs to go to trial.
If Judge Curiel dislikes Trump (for whatever reason), is there a basis for demanding a recusal? Of course not. I imagine federal judges have a low opinion of many defendants (whether or not innocent in the particular case) who appear before them. This does not mean they are incapable of making fair rulings on the law or judging the evidence presented in an impartial manner. The leap from Judge Curiel’s ethnic background to the conclusion that he should recuse himself is bereft of evidence and supported only by thick racist stereotypes.
To my mind, it is important to recognize that a lying, bigoted, ignorant, narcissist is the presumptive nominee of the Republican Party because there is a market in the Republican Party for bigotry. A substantial majority of Republicans as opposed to Republican leaders actually think that Trump’s remarks about Judge Curiel are free of racism.
Republican leaders in modern history have cultivated that bigotry. The difference between Trump and prior Republican candidates like Goldwater, Reagan, George H.W. Bush and others is that their racist appeals were coded in the language of states’ rights, Willie Horton, and welfare queens. Trump is simply more vulgar and more explicit. But that vulgar display is sowing the seeds for the destruction of the Republican Party in this election and exposes the need for a thorough re-imagination of what that Party could possibly stand for if it is to be competitive in Presidential elections.