RUTHFULLY YOURS

Would a mainstream politician have dared raise the affiliations, sympathies, ethnic heritage and political patrons of the judge hearing his case? Never, not in a million years. But the outsider candidate detested by his own party’s establishment is no normal politician. Nor is he a racist

Donald Trump gets into trouble to often for his own good and America’s. He has to get with the PC program, give away his throwaways and stick to major national issues and policies. His policy objectives are all vote winners. Look at this partial list and find fault if you can. Putting myself in patriotic American shoes, I can’t.

Securing the border, building the military, taking better care of vets, destroying ISIS, putting America first by insisting that allies pull their military weight
Controlling immigration, particularly Muslim immigration
Replacing Obamacare
Creating jobs by lowering taxes and regulations, liberating the exploitation of fossil fuel energy and negotiating better trade deals.

If he concentrates on his policies and reserves his criticisms for Clinton he will likely win. It’s the diversions that get him into trouble. This time Trump criticised the judge hearing the class-action civil suit against Trump University, which, as I understand it, purported to teach people how to profit from real estate. That would have been OK. His mistake was in suggesting that the judge’s Mexican heritage (his parents were Mexican migrants) may have played a part in swaying his conduct of the proceedings.

He said this because the judge, Gonzalo Curiel, appointed by President Obama, is a member of a Latino lawyers association (La Raza Lawyers Association) whose members have a record of acting for illegal migrants. Moreover, the class action was brought by a legal firm which has given large sums of money to the Clintons. Trump’s thinking is that the case has taken on a political dimension and that his own strong stand on illegal Mexican immigration may have affected the judge’s ability to act objectively.

Trump argues that his side is being treated unfairly. As an example he notes that a leading plaintiff was found to be on record praising the University. As a result, the legal firm representing her asked that she be removed from the case; as you would. At question, in Trump’s view, is why the judge allowed this without summarily dismissing the case.

I have no idea of the precise accuracy of this account or of the legal rights and wrongs of what occurred. But that doesn’t matter. The question I would like to pose is this: was Trump’s statement racist, as Paul Ryan and other Republicans have said; and as numbers of conservative commentators like, for example, Charles Krauthammer, have said?

I will cut to the chase. It isn’t racist. Asserting that some white jurymen and white judges in the Deep South in, say, the 1960s were influenced by their ethnicity in evaluating the testimony of black witnesses is not racist. As we know, in those cases, the racists were on the bench and on the juries.

Of course, if Trump had said what his critics claim it would be racist. Time and time again, I heard them say that Trump had said that Curiel’s Mexican heritage disqualified him from hearing the case. The problem is that he didn’t say that. The segment of the stump address that sparked the escalating brouhaha can be viewed below. Watch it if you have 11 minutes to spare and see if the press is reporting an actual comment or an imaginary one.

To hear many commentators tell it, Donald Trump claims that an American-born judge, by dint of nothing other than his Mexican ancestry, should be deemed so biased against him that the judge should be recused from a civil fraud case in which Trump is a defendant. Indeed, Trump is said to have dug himself an even deeper hole last weekend, adding Muslim-American judges to the class of jurists before whom we are to believe he cannot get a fair trial.

For present purposes, I am putting the Muslim judge issue aside because it is hypothetical – i.e., while Trump’s meanderings about the judge of Mexican descent involve a concrete case, I know of no actual case involving the litigious Trump and a judge who happens to be Muslim.

Moreover, to avoid further elongating this column, I will not address whether, in analyzing an actual legal claim of judicial bias, a judge’s race, ethnic ancestry or religious affiliation might become relevant due to that judge’s political activism. Trump surrogates insist that, to the extent the candidate has invoked a judge’s Mexican descent or (hypothetically) Islam, he was not relying solely on ethnic or religious status, but on such status in conjunction with political activism on behalf of Mexican illegal aliens or political Islam’s sharia law agenda. There is a lot to be said for this argument, which reminds us why judges – who are obliged to maintain the objectivity and public integrity of judicial proceedings – should resist political activism. In any event, this is a complex legal issue and it deserves separate consideration.

Instead, the purpose of this column is to focus on two rudimentary questions that I do not believe have been adequately addressed:

First, did Trump do it? That is, has he posited an actual legal claim – a noxious and dangerous one – that mere ethnic heritage can disqualify a judge from presiding over a legal controversy? Or is Trump, as I conclude, making an unsavory political argument?

Second, is Trump’s argument really about the purported bias of the judge in question, Gonzalo P. Curiel of the federal district court in Southern California? Or is Trump, as I conclude, attempting – however cynically – to draw the sting of disclosures regarding the civil fraud case involving “Trump University”?

To cut to the chase: Is Trump trying to discredit the judge, not out of racism or an honest belief that Judge Curiel is violating his due process rights, but in hopes of discrediting the underlying Trump U shenanigans by persuading people that it is a biased judge, rather than damaging evidence, that is making him look bad? Does Trump fear that his critics will otherwise use the Trump U disclosures against him the same way Hillary Clinton’s detractors have exploited disclosures about her email improprieties to damage her presidential bid?

“A lifetime member of an organization that very recently made public calls for a general boycott of the defendant’s businesses.”

The most important argument in favor of forcing U.S. district judge Gonzalo Curiel to recuse himself from the Trump University lawsuits was published today by the Conservative Treehouse.

The Treehouse linked to a copy of Judge Curiel’s “United States Senate: Committee on the Judiciary – Questionnaire for Judicial Nominees” in which, on page four of his response, Judge Curiel states that he is a “Life-time Member” of the “Hispanic National Bar Association [HNBA].”

The HNBA made public a press release in July 2015 that called for the following actions against Donald Trump and his enterprises:

The HNBA calls for a boycott of all of Trump business ventures, including golf courses, hotels, and restaurants. We salute NBC/Universal, Univision and Macy’s for ending their association with Trump, and we join them in standing up against bigotry and racist rhetoric. Other businesses and corporations should follow the lead of NBC/Universal, Univision and Macy’s and take similar actions against Donald Trump’s business interests.

A case can be made that no sitting judge should be aligned with any such activist organization in general, but for a judge to preside over a case involving a defendant’s business whereby said judge is also a lifetime member of an organization that very recently made public calls for a general boycott of the defendant’s businesses is an undeniable stain on the purported impartiality of the judiciary.