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Winston S. Churchill on European Integration

The following is the final paragraph of a speech by Churchill at Zurich University on September 19, 1946:

“I must now sum up the propositions which are before you. Our constant aim must be to build and fortify the strength of [the United Nations]. Under and within that world concept we must re-create the European family in a regional structure called, it may be, the United States of Europe. The first step is to form a Council of Europe. If at first all the states of Europe are not willing or able to join the union, we must nevertheless proceed to assemble and combine those who will and those who can. The salvation of the common people of every race and of every land from war or servitude must be established on solid foundations and must be guarded by the readiness of all men and women to die rather than submit to tyranny. In all this urgent work, France and Germany must take the lead together. Great Britain, the British Commonwealth of Nations, mighty America, and I trust Soviet Russia—for then indeed all would be well—must be the friends and sponsors of the new Europe and must champion its right to live and shine.”—Winston Churchill

Notice that Churchill seems to exclude Britain from this European project! Yet Churchill’s “efforts eventually led to the Hague Congress of May 1948 and the creation of the Council of Europe in 1949, both milestones in European integration.”*

* Brent F. Nelsen and Alexander Stubb, eds. The European Union: Readings on the Theory and Practice of European Integration (Boulder, CO: Lynne Rienner, 3^rd ed., 2003). See too, Robert Rhodes James, ed. Winston S. Churchill: His Complete Speeches, 1897-1963, Vol. 7, 1943-1949 (New York: Chelsea House Publishers, 1974).

Further Reading:

• Arnull, Anthony and Damian Chalmers, eds. The Oxford Handbook of European Union Law. Oxford, UK: Oxford University Press, 2015.
• Bomberg, Elizabeth, John Peterson, and Richard Corbett, eds. The European Union: How Does it Work? New York: Oxford University Press, 2012.
• Corbett, Richard, Francis Jacobs, and Michael Shackleton. The European Parliament. London: John Harper Publishing, 8th ed., 2011.
  
• Jones, Erik, Anand Menon, and Stephen Weatherill, eds. The Oxford Handbook of the European Union. Oxford, UK: Oxford University Press, 2012.
• McCormick, John. Understanding the European Union: A Concise Introduction. London: Palgrave Macmillan, 6th ed., 2014.

Breath Tests, Blood Tests, and the Fourth Amendment

Lost in the Supreme Court shuffle yesterday was the Court’s drunk driving decision (Birchfield v. North Dakota) on breath and blood tests and the Fourth Amendment. The Court ruled that breath tests whether at the scene or at the station did not require a warrant. On the other hand, blood tests because of their more intrusive character were ruled to require a warrant.

The significance of this decision in drunk driving cases is small for two reasons. First, most jurisdictions rely on breath tests administered at the station (the breath test administered in the field, whatever its merits as a screening test is inadmissible). Presumably those jurisdictions using blood tests in drunk driving cases will begin to shift to in-station breath tests.

On the other hand, blood tests are the standard test employed to determine whether a motorist has been driving under the influence of drugs other than alcohol, and, in the absence of exigent circumstances, the Birchfield decision states that a warrant is required in those cases as well. Here again, the impact of the decision is limited because of an exception to the warrant requirement. The overwhelming majority of states including New York have passed implied consent laws. They provide that by securing a license to drive on the highways, a motorist has agreed to submit to a breath or blood test (at least when the test is preceded by a valid arrest), and refusals to submit to such tests at the station can be admitted in evidence against the motorist and will lead to a license suspension or revocation. (A refusal to take a breath test at the scene in New York is a simple infraction).

What distinguished Birchfield and the companion cases is that North Dakota’s implied consent law criminalized the refusal to submit to a breath or blood test. Eleven other states take the criminalization approach. The Court led by Justice Alito ruled that this went too far to support the conclusion that the motorists had “consented” to the tests.

Gandhi at the Aga Khan Palace

From a blog post by Vinay Lal with his characteristically thoughtful and informed reflections upon visiting the Aga Khan Palace in Pune, India:

“He may be the ‘Father of the Nation,’ but it is more than his reputation, lately under assault from all the wise ones, that lies in tatters. A plaque at the entrance to the Aga Khan Palace in Pune, where Gandhi was confined for two years after he issued a call to the British to ‘Quit India’ in August 1942, furnishes a brief introduction to this ‘monument of national importance.’

On my visit to this monument in March of this year, I found it in a state of utter dilapidation. This is far from being India’s only ‘national monument’ that has suffered from neglect and indifference; however, its association with Gandhi most likely ensures that it is not likely to see a revival of its fortunes. If the murder of Gandhi was a permissive assassination, one celebrated by those elites who were enraged at the thought that the old man would if alive continue to exert an influence upon the affairs of a young nation-state struggling to find its feet in an evil world, permissive neglect seems to be the modus operandi through which Gandhi is slowly being sent into oblivion. [….]

The hostility to Gandhi among the advocates of Hindu nationalism is palpable. Considerable segments of the RSS have thought nothing of glorifying his assassin, Nathuram Godse, who not coincidentally was born in Pune District. Whatever the culpability, which cannot be doubted, of previous local administrations, neither the present local nor the state government can be expected to have any interest in reviving an institution intended to celebrate the life of a man whom they view as guilty of appeasing the Muslims and weakening the Hindu nation. The Government of Maharashtra is securely in the hands of a BJP-Shiv Sena combine; the Shiv Sena’s former leader, the late Bal Thackeray, was often heard deriding Gandhi as a eunuch. [….]

Nearly ten years ago, I wrote a piece in the Economic and Political Weekly entitled ‘The Gandhi Everyone Loves to Hate,’ arguing that every constituency in India had a grievance with him. In the intervening years, it has become almost obligatory to denounce Gandhi as a sexist and racist; and there are even websites that claim that he raped virgins and should have been jailed as a serial sex offender. Some of his critics had been long been convinced that he had prevented the possibility of a ‘real’ revolution—apparently, unless several million people have not been killed, or the enemy has not been exterminated in a calculated genocide, a genuine upheaval cannot be viewed as having taken place—in India, but lately we have also heard that his empathy for Dalits was nothing but a sham and that he even fortified the British empire in South Africa and India alike. Arundhati Roy is, of course, much too smart and sophisticated to write a book with a title akin to something like ‘The Gandhi You Never Knew,’ but the substance of her critique is effectively the same. And that critique is nothing other than the stupid idea that the ‘real’ Gandhi has been hidden from history. If the state of the exhibits at the Aga Khan Palace suggests anything, it will not be long before Gandhi disappears altogether from public view. Then India can celebrate its ‘real’ independence and manhood.”

The full post, with Lal’s recent photographs, is here.

My bibliography on the life, work, and legacy of Gandhi is here.

Saudi Arabian Human Rights Lawyer Waleed Abu al-Khair Continues to Fight for Social Justice from Prison

 

By Bill Quigley

Picture available here: http://www.ibtimes.co.uk/saudi-arabia-jailed-blogger-raif-badawis-lawyer-waleed-abu-al-khair-wins-human-rights-award-1505896

“Even from prison, you can still light a candle”

Waleed Abu al-Khair began to practice law in Saudi Arabia in 2007.  He quickly earned an international reputation as one of the most respected human rights lawyers in one of the world’s most repressive countries.  Within a year he joined in a high profile critique of the ruling monarchy.  He repeatedly and openly advocated for democracy.  He controversially defended the human rights of women, dissidents, and prisoners targeted by the authorities.  Before long, the government called his stands for human rights terrorism.  They harassed him, surveilled him, shut down his social media and finally put him in prison, where he has remained since 2014.   Even from prison, though, he refuses to back down and continues to publicly press for freedom and human rights.  This is his story.

First, a bit about Saudi Arabia, which has been a close ally of the US since the 1940s.  Saudi Arabia is tightly ruled by a hereditary monarchy and is a scary place to be a free human being, much less a human rights lawyer.   Freedom House rates Saudi Arabia as one of the worst in the world in civil liberties and political rights.   Torture is common, according to Amnesty International.  The country ranks third globally, right behind North Korea, in denying freedom of the press, frequently arresting not only protestors but also those who report on protests.   Human Rights Watch notes government authorities continue to arbitrarily arrest, try and convict peaceful dissidents.   Recent “antiterrorism” laws allow the government to jail anyone who demands reform or engages in dissent. 

Waleed Abu al-Khair was born in Jeddah, Saudi Arabia in 1979.   His family includes a number of judges and Imams.   As a young man he memorized the Quran and graduated from King Abdulaziz University in 2003.   He began to practice law in 2007.  He set up his office with a well-known Saudi human rights lawyer, Essam Basrawi.  Basrawi was one of ten people, known as the Jeddah reformists, who was arrested for trying to set up a human rights association.

Immediately upon starting his legal career, Abu al-Khair joined other activists and released a petition titled Parameters of the Constitutional Monarchy calling for the Saudi Royal Family to change the country’s rule from absolute monarchy to a democracy based on free elections.   Within weeks, the government revoked his scholarship to study abroad.

Waleed Abu al-Khair founded the globally well-respected Monitor of Human Rights in Saudi Arabia (MHRSA) in 2008.  Also in 2008, Abu al-Khair organized the country’s first 48 hour hunger strike for prisoners of conscience in Saudi Arabia which led to sit-ins and demonstrations.   According to the BBC, activists report there are as many as 30,000 political prisoners in Saudi Arabia while the government says there are only 10,000. 

In 2009, he became a defense lawyer for several of the “Jeddah reformists” who were arrested along with Basrawi after trying to establish a human rights organization.  The same year he received his Masters of Jurisprudence from Yarmouk University in Jordan.

Abu al-Khair volunteered to represent Samar Badawi in 2010 after she had been jailed for “disobedience” of her father by, among other actions, fleeing to a woman’s shelter to avoid 15 years of his abuse.  According to Human Rights Watch Saudi Arabia denies women the right to obtain a passport, marry, travel, or access higher education without the approval of a male guardian like father, husband, brother or son.  Abu al-Khair established a vigorous online campaign to support her during the trial.  Now an acclaimed human rights activist in her own right, Samar Badawi married Abu al-Khair soon after she was released.   

Abu al-Khair later took on the case of Raif Badawi, the brother of Samar Badawi and a prominent Saudi blogger, who was charged with insulting religious authorities and was ultimately sentenced to 10 years in prison and 1000 lashes.   

While he was becoming well known for his advocacy, his own government harassed him and the US, though supportive behind the scene, refused to publicly try to protect him.

In 2012 he was awarded the Olof Palme Prize for “his strong, self-sacrificing and sustained struggle to promote respect for human and civil rights for both men and women in Saudi Arabia.”  The government did not allow him to attend the ceremony.   Around the same time, he and his wife, Samar Badawi, began hosting weekly gatherings in their home where small groups of young dissidents could discuss important issues which are not allowed to be debated publicly.   

Waleed Abu al-Khair acknowledged how difficult it was to be a social justice lawyer in an article he wrote around this time. “There are many rich people here because of our oil - and this oil is all we have.  But a lot of people do suffer and live a hard life.  And they know if they raise their voices, the consequences will be very serious.  It’s not that people don’t want change; it’s that they don’t have the ability to bring it about….I have been told many times by United States officials that good relations with Saudi Arabia are vital for them.   So they cannot back any political activism – the best they can do is show support for some kinds of social change.  Backing people who want to change the system is out of the question.  We know that we will get no support from outside in trying to change our country….It is not easy to be an activist in Saudi Arabia. I have been taken into custody for investigation many times; I have been beaten; my wife is banned from leaving Saudi Arabia; and my Twitter, my Facebook account and my website are blocked. I have no doubt they want to put me in prison and one day this will happen – the authorities are just waiting for a good opportunity.”

Finally, after only 7 years of practice, the government jailed Waleed Abu al-Khair was jailed for his human rights advocacy.  He has been in jail ever since.  Human Rights Watch reported he was convicted and sentenced to 15 years in prison on July 6, 2014 on vague charges stemming from his peaceful human rights advocacy by a special Saudi terrorism court including “Inflaming public opinion and disparaging and insulting judicial authority,” “founding an unlicensed organization,” “distorting the kingdom’s reputation,” and other charges based on his peaceful human rights advocacy. 

In jail Abu al-Khair became a father and has been repeatedly been moved around to different prisons, some 600 miles away from his family.  In September 2015, the United Nations Working Group on Arbitrary Detention called for the release of Abu al-Khair and 8 others from Saudi prisons.  Keeping him in jail, the UN stated “forms a part of both continued and recent persecution and crackdown on human rights activists in Saudi Arabia.”

While imprisoned, Waleed Abu al-Khair was awarded the prestigious 2015 Ludovic-Trarieux Human Rights Award, first given to Nelson Mandela.

Samar Badawi reflected on what it meant to have her husband Abu al-Khair in prison.  “To my fellow Saudi Arabians I say that my husband has been imprisoned so that you could live free. He stood up to the tyrants to claim your rights; he faced up to his oppressors telling them he would not tolerate their repression. Remember that history does not forget, it will exalt those who have fought for freedom and cast aside the memory of those who succumbed to a life of humiliation and servitude.”  She also addressed their child, Joud, who was born shortly after he was imprisoned. “My last words are to my baby daughter, Joud. Do not feel sad because you were born while your father was behind bars. Be proud instead and hold your head high, for the whole world envies you for the father you have – even if his homeland has turned against him.  The future awaits you to continue your father’s struggle so that you make him even more proud than he is now. You will grow up to be a role model yourself, soon to become known as Joud the free, Joud the defiant, Joud the resilient: Joud Waleed Abu al-Khair.”

Though the US and the UN make noises about the widespread human rights violations by Saudi Arabia, in the end the country’s oil and regional power silence most critics.

As he prepared to enter prison, Abu al-Khair wrote:  “In Saudi Arabia, we live a special challenge – the challenge to be free and to own yourself, your inner being, as well as to be a human rights defender in the face of a political power that employs all of its resources and capacity to dominate the judiciary so as to send you to jail and silence your voice…. As long as the oil keeps flowing, the world will turn a blind eye if Saudi Arabia continues to crack down on freedom and human rights…. Because freedom is cultivated, its seeds are those who have sacrificed a lot and have made the sky the limit to their sacrifice. They created a sense of inner peace for themselves that only they can understand. That is why I shall be flying high with them, even from behind bars. In prison I will never need a window that opens out to the sky. I do not need a door to explain to the world why I am there in prison. What I truly need lies within your conscience and every free conscience.  There will always be free souls in this world who will not be silenced by oil!...The exception here involves a type of very spiritual people who suffer a lot in the eyes of others but are jubilant and overtly happy deep within. They feel like this simply because they cling onto great hopes – they are resilient in the face of all hardship. They are supported by human rights activists from all over the world and feel overwhelmed by their kindness and solidarity. One of them once said, in front of a courtroom, after being threatened to be sent to prison by the presiding judge: “Even from prison, you can still light a candle.”

Waleed Abu al-Khair has been nominated by several international human rights organizations for the first ever American Bar Association International Human Rights Award.

Please consider signing the Amnesty International online petition demanding his freedom.   You can be sure he is working to free all political prisoners.

Senator McCain’s batshit crazy account of historical and political causation (hence, responsibility)

In the news:

“Republican Sen. John McCain said Thursday that President Barack Obama is ‘directly responsible’ for the mass shooting in Orlando, Florida, because of the rise of the Islamic State group on the president’s watch. But he later issued a statement saying that he ‘misspoke.’

‘I did not mean to imply that the president was personally responsible. I was referring to President Obama’s national security decisions, not the president himself,’ McCain said in his statement, issued as his initial comments were drawing heated criticism from Democrats. [….]

‘Barack Obama is directly responsible for it, because when he pulled everybody out of Iraq, al-Qaida went to Syria, became ISIS, and ISIS is what it is today thanks to Barack Obama’s failures, utter failures, by pulling everybody out of Iraq,’ a visibly angry McCain said as the Senate debated a spending bill.”

Comment: Senator McCain here displays an appalling measure of historical amnesia in his construction of a compact and fanciful chain of causation and responsibility. Setting aside for now events intrinsic in the first instance to Syria, he’s implausibly forgotten or deliberately ignored the U.S.—dominated coalition’s invasion of Iraq, which of course preceded and eventually led to the need for withdrawal of troops from the country, a withdrawal that had the endorsement of the American electorate. Congress initiated calls for withdrawal of troops, which then began under President Bush, while it was President Obama who, rightly or wrongly, later saw fit to extend the date of withdrawal! As C.A.J. (‘Tony’) Coady reminds us in his book Messy Morality: The Challenge of Politics (Clarendon Press, 2008), it was this invasion that brought Iraq close to civil war, as well as “unleashed the religious and tribal enmities that had been subdued by the brutal Hussein regime. It has also given opportunities for hitherto non-existent sub-state terrorism in the country as well as the depredations of criminal gangs, and created resentments and rage against the invaders amongst many in the population at large by the arrogant and often racist treatment meted out to Iraqis by troops made edgy and wary by the constant pressure of insurgent war that shows little sign of abating. Abu Ghraib and reported raping and killing by occupying troops are only the tip of the iceberg of this aspect of the disaster.”

Coady further notes that “It is indeed a good thing that the murderous tyrant Saddam is gone, and that he has no further opportunity to kill and despoil on the massive scale that he did [on occasion, with the assistance and blessings of the U.S., as during the Iran-Iraq War (1980-88)]. The evil acts of his regime must be acknowledged, and they legitimately had weight in thinking about an international response to Iraq. But the destabilizing of the Middle East, the greatly increased impetus to terrorism, the benefits of power to Iran, and the descent of Iraq into civic chaos are colossal prices to pay. Indeed, according to one reputable estimate, published in 2006, there has been an increase of 655,000 Iraqi deaths directly attributable to the invasion of 2003 and its aftermath. In addition, there has been a massive exodus of Iraqi people to other countries, although recently some refugees have returned.”

In short, McCain’s self-righteous anger is misplaced because misdirected, as it is President George W. Bush and British Prime Minister Tony Blair who should be held primarily responsible for the chain of consequences and “utter failures” he invokes, all of which began under the duplicitous ideological guise of a quest “to disarm Iraq of weapons of mass destruction, to end Saddam Hussein’s support for terrorism, and to free the Iraqi people.” In addition to the arrogance, condescension, and impudent moralism of the messianic complex (or ‘militant humanitarianism’), recall that no such weapons ever existed, nor was there compelling evidence that Hussein consistently or reliably aided or supported terrorism outside Iraq. [Lest the wrong inference be made from the foregoing, I should note that I do not believe ISIS had anything whatsoever to do with the mass shooting in Orlando, Florida, save for the subsidiary and fantasized role it played in the severely disturbed mind of Omar Mateen.]

Bargaining Grocery Workers in Southern California

“More than a decade after launching the longest major supermarket strike in the nation’s history, union representatives for Southern California grocery store workers are back at the bargaining table. This time, there’s a third party in the room: a $15 minimum wage.

California’s schedule of steady increases to the wage floor, which will boost that wage to $15 an hour by 2022, is doing some of the work for the seven unions as they seek their fourth contract with the Ralphs and Albertsons chains since the epic 143-day strike that brought the region’s supermarkets to their knees in 2003-2004. 

But the two big chains, which include Safeway, Vons and Pavilions stores, are looking to offset rising pay in other ways. That is likely to be the basis for any new confrontation. ‘They are offsetting the cost of the minimum wage, they are trying to find ways to get around it,’ said Rick Icaza, the president of United Food and Commercial Workers Union Local 770.

The starting wage for a worker at the two chains is $10.10, just over the current state minimum. The companies have proposed a raise of 10 cents per worker over the next three years and cuts to holiday pay; they also want to make it harder for entry-level employees to reach the highest pay grade, union officials said.

On June 20, 47,000 clerks, meatcutters, and merchandise stockers will have the chance to vote on whether to authorize a strike. [….]

Wages for clerks, baggers and everyone in between have actually declined after adjusting for inflation, hitting $28,964 per Los Angeles worker on average, down from about $31,175 per year in 2005.

The food industry, meanwhile, is growing. In 10 Southern California counties — from Imperial and San Diego north to San Luis Obispo and Kern — giant chains and independents are fighting over a market that is more than twice as big as the next largest, the New York-New Jersey metropolitan area, Flickinger said. Since the strike was resolved, employment has increased by 25% in Los Angeles locations.

But the new workers are signing up for jobs with fewer perks and dwindling hours. [….] ‘Grocery store jobs look much more like fast-food jobs than they used to,’ said Chris Tilly, director of the UCLA Institute for Research on Labor and Employment. ‘Lower pay, fewer benefits, more people part-time.’” [….]

The full article from the Los Angeles Times is here.

Emblematic of the Essence of the Republican Party in Our Time

“Republicans cook up plan to cripple consumer agency”

[….] “’Dodd-Frank’s false premise is that an alchemy of Wall Street greed, out-sized private risk and massive Washington deregulation almost blew up the world economy,’ he [i.e., Rep. Jeb Hensarling] said in a speech last week to the Economic Club of New York. ‘It wasn’t deregulation that caused the financial crisis,’ Hensarling said. ‘It was dumb regulation.’

As for greed, he said, ‘When hasn’t there been an element of greed on Wall Street?’ Boys will be boys, right?” [….]

‘He’d gut Dodd-Frank and gut the Consumer Financial Protection Bureau,’ said Deepak Gupta, a Washington lawyer who previously worked as senior counsel for the watchdog agency. ‘Jeb Hensarling is a wholly owned subsidiary of the financial services industry.’

Too harsh? Not when you consider that, according to the Center for Responsive Politics, Hensarling has received more than $5.5 million from financial firms and industry groups since being elected to the House in 2002. The top two contributors to his political endeavors are JPMorgan Chase ($105,000) and the American Bankers Assn. ($85,000).” In the 2014 election cycle, Hensarling was Congress’ No. 1 recipient of cash from payday lenders ($68,000), which are strongly against proposed rules from the CFPB that would rein in their operations. [….]

The full article from the Los Angeles Times by David Lazarus is here.

Hillary Clinton, Dishonesty, and Sexism

Michael Arnovitz on Facebook has a terrific defense of Hillary Clinton. It is the best I have seen. Well worth reading. See here.

The Light and Shadow Cast by Philosophy on Political Praxis (revolutionary or otherwise)

Both “Kantian moral freedom and the rhetoric of prophetic nationalism emerged from Rousseau’s effort to internalize Hobbesian sovereignty….” This apparently “puzzling feature of Rousseau’s political thought has in fact “inspired two projects that seem different and opposed to one another. John Rawls finds in Rousseau the basic framework for the Kantian-liberal project of constructing a legitimate state around the [hypothetical] consent of morally autonomous individuals united in a conception of public reason. But others find in the same political theory arguments for a more romantic politics in which strong and prerational passions –patriotic and nationalistic—sentiments of belonging—play a central role.”—Bryan Garsten in Saving Persuasion: A Defense of Rhetoric and Judgment (Harvard University Press, 2006)

It is the latter interpretation of Rousseau’s “transformation of Hobbesian sovereignty” that Jonathan Israel* attributes to the authoritarian populism (which culminated in ‘the Terror’) of Marat and Robespierre, as it subordinated reason to popular will and the common man’s feelings. This raises a topic broached by one of my former teachers: “It is … one thing to stress the impact of ideas and opinions on policies and actions. It is quite another matter to single out certain thinkers or theories or concepts as responsible for what they could neither have visualized nor intended in all its implications.” In brief, yes, aspects of Rousseau’s thought had a pernicious influence on the likes of Marat and Robespierre, but we cannot place “the entire burden of blame” on Rousseau’s political philosophy for the ruthless repression of Montagnard rule (save the Dantonists), thereby condemning Rousseau by Robespierre, any more than we should condemn Marx by Stalin. It is no doubt true that “Robespierrisme—in religious policy just as in education, in its views on women, black emancipation, constitutional theory, press freedom, and individual rights—everywhere clashed with the Revolution’s essential principles and, above all, the Rights of Man,” but that should not mean we reduce Rousseau’s political thought to its influence on Robespierrisme: “In pleading against the tyrannical and tragic consequence of isms and systems, we may foist too easily the entire burden of blame upon those very thinkers whose theories were most vulnerable to distortion as well as exploitation.”**

* See his “veritable tour de force,” Revolutionary Ideas: An Intellectual History of the French Revolution from the Rights of Man to Robespierre (Princeton University Press, 2014).

** Raghavan Iyer, Utilitarianism and All That (Chatto & Windus, 1960).

Ethnic Background and Judicial Impartiality

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.

A Question about the Preceding Post

The preceding post, about Azadeh Shahshahani, is terrific.  Who posted it?  (I would have asked this question in a comment, but the comments are closed.)  Thanks.