Donald Trump’s calls for the judge presiding over the federal fraud lawsuit against Trump University, Gonzalo Curiel, to remove himself from the case because of ethnicity-inspired bias against Mr. Trump have been rejected by responsible thinkers across the philosophical and legal spectra, and indeed I think no reasonable defense of Mr. Trump’s position can be maintained. Yet the reflexive, almost automatic (and, in the end, correct) tendency to dismiss Mr. Trump’s efforts here as racist masks a complexity of the situation that is worth exploring. So in the space below I try to use Mr. Trump’s wrongheadedness as a “teachable moment” to unearth some important lessons about, among other things, when and how race and ethnicity may properly (and improperly) be thought to affect decision-making in the judiciary and analogous settings.
Let us start with Mr. Trump’s explanation, elaborated by him more fully after his detractors began to weigh in. Mr. Trump disclaims any view that a judge of a particular racial background should presumptively be disqualified from hearing cases involving litigants or issues that might significantly affect people of the same ethnicity as the judge. Indeed, such a position would be impossible to maintain unless it were applied only to people of some races; for example, no judge could ever hear an affirmative action case since affirmative action affects people of all races (albeit in different ways). This is why the law does not allow litigants to seek removal of judges based on race (as well as gender, religious affiliation, etc.,) and why any motion Trump’s lawyers might have made to recuse Judge Curiel would have lost.
Mr. Trump’s stance purports to be narrower—he contends that Judge Curiel has issued rulings against him and his University that cannot be explained simply as interpretations of the law or fact that differ from Mr. Trump’s. So, says Mr. Trump, there has to be a different explanation for Judge Curiel’s decisions, one not based on the legal merits. The likely answer (says Trump) is that Curiel’s identity as a Mexican-American lawyer/jurist makes him hostile to Trump’s policy prescriptions for immigration from Mexico, and thus makes him biased against Trump himself.
Before we begin to assess whether Mr. Trump is guilty of racism here, let us pause to comment on how objectively unreasonable his conclusions are. There are dozens of reasons why the Judge might not see eye-to-eye with Mr. Trump on the issues presented by the federal lawsuit. Most likely of these is that Mr. Trump is the one who has a bias here—it’s his money and reputation on the line, after all—and the Judge simply has a view of the governing law or facts that is different from that presented by Trump’s lawyers. It is quite characteristic for Mr. Trump to personalize any disagreement anyone has about any position he asserts; that is what narcissists do, and that is what he did throughout the Republican Party primary campaign.
Even if there were some evidence that Judge Curiel had it in for Mr. Trump personally (and I haven’t seen or heard of any), why is the Judge’s ethnicity and Mr. Trump’s position on Mexico what stand out for Mr. Trump as the likely explanation? After all, Judge Curiel was appointed by President Obama, and the operations of Trump University and several other for-profit colleges might offend many persons affiliated with President Obama and the Democratic party. A large swath of America—of all races—finds Mr. Trump’s business practices abhorrent, and yet Mr. Trump seized on Judge Curiel’s race/ethnicity as the defining characteristic that accounts for the Judge’s supposed hostility to him. Based on the quickness with which Mr. Trump invoked race, it seems that he, rather than Judge Curiel, is the one who seems overly influenced by racial thinking. (Uncle Leo in Seinfeld, who tells Jerry the diner cook must be an anti-Semite because Leo ordered a medium rare hamburger and instead got one that was medium–“they don’t just overcook a hamburger, Jerry”—comes to mind.)
Does this mean it would have been less incendiary to accuse a judge of ideological bias having nothing to do with race than to suggest ethnic attitudes were a factor? I think so. Many commentators, including members of Congress and presidents, criticize judicial rulings as being influenced by improper philosophies or even by improper desires to protect partisan interests—think, for example, about the criticism of the conservative majorities in Bush v. Gore and Sebellius, the first big Obamacare case—and such criticism doesn’t seem to strike the same nerve that charges of racial influence do. Why, exactly, is that?
A large part of the answer is that race and ethnicity are characteristics that have been used so inequitably and perversely throughout American history; when the race of individuals is brought up (for example, to say that they can’t judge a case fairly), quite often people of some (minority) races have been systematically disadvantaged and excluded more than people of other races. Invocations of race trigger our suspicions that essential characteristics about an individual, with which s/he is born and over which s/he has no control, are being used unfairly.
But–and this is a very important point that seems to have been lost in the debate over Trump’s remarks about Judge Curiel—none of this means it is inherently insulting to suggest that racial experiences influence the way one processes information (including information in legal cases). Making such a suggestion about an individual or a group is not always or intrinsically racist. When universities (and companies, and the military, and branches of government) seek to increase racial diversity, they do so in part on the assumption that people of different races do bring different sets of attitudes to the job. That does not mean that we can predict, down to the person, what the someone’s attitudes will be, but it does mean that it’s not (to most of us, at least) stigmatizing to suggest that people with different racial identities, backgrounds, and experiences are not fungible. (Remember Justice Sotomayor’s suggestion that a “wise Latina” may bring different positive things to the job than other capable people do.) When prosecutors seek to remove jurors of color (because jurors of color may tend to be more pro-defendant, regardless of the race of the defendant), and criminal defense lawyers seek to remove whites (because they tend to be more trusting of the criminal justice system), neither set of lawyers is acting irrationally if their objective is to win the case—or even, necessarily, in a racially insulting way.
To be clear, as a legal system we have properly frowned on efforts by lawyers to remove jurors because of race, but I think the best explanation for our hostility to race-based juror removal is grounded on systematic concerns—including the fact that allowing a racial free-for-all would end up making juries more white generally (the point I made about how the use of race historically has disparately hurt minorities)—and not because lawyers are always acting evilly or stupidly. Indeed, the fact that we let the criminal defendants challenge the exclusion of jurors of color itself shows that we accept that such jurors are, in the main, likely to benefit defendants. Otherwise, the defendants would suffer no injury by the exclusion of which to complain.
Then why does Mr. Trump come off looking immoral and thoughtless here? First, as noted earlier, he has no evidence that Judge Curiel is treating him unfairly or is in any way being influenced by race (the way there is evidence that jurors of color and white jurors, in the aggregate, process criminal cases differently). If Judge Curiel had made offhand mention of Mr. Trump’s stance on Mexico during the case (an issue not relevant to the fraud lawsuit), then perhaps Trump’s analysis would not look so crude. But where race is involved, crudeness and imprecision carry great risks, as Mr. Trump is finding out.
Trump’s assertions are coarse in another way too; notice that Mr. Trump is suggesting not only that race affects one’s views on immigration and a wall with Mexico, but that Judge Curiel is taking the next step of letting his (presumed) views on the wall influence litigation involving Mr. Trump that has nothing to do with immigration. Accusing a judge of being (overly)influenced by inappropriate factors (like his own racial heritage) in processing facts and legal issues that affect racial justice is one thing; accusing a judge of being biased against particular persons because of what they believe or who they are is levelling charges of the most serious kind of judicial misconduct.
Finally, I think Mr. Trump comes off as thoughtless and racist here because he has said many other things that come off as thoughtless and racist. To be sure, as noted earlier, Mr. Trump has unkind words for a very large number of individuals and groups, he regularly personalizes disagreements, and he is quick to see conspiracies by government officials (as illustrated by his stance on climate change and his expressed belief that there is no drought in California). Yet notice that Mr. Trump routinely seems to reserve the most serious of accusations—accusations that go not just to factual wrongness but to character, loyalty, and worth as an individual—for people who belong to minority communities. Whether it is his characterization of the bulk of Mexican immigrants as criminals, drug dealers, and rapists (even his concession that “some, I assume are good people,” is half-hearted, because the innocence and good character of the small subgroup is not asserted, just assumed), or his accusation that President Obama is not a natural-born citizen (that helped elevate Trump’s political profile), or his bizarre contention that Senator Cruz’s father (the one of Cruz’s parents who was of color) was involved in President Kennedy’s assassination, or his characterizations of women, or his belittling of Native American culture (by invoking Pocahontas to refer to Senator Elizabeth Warren), not to mention his plan to ban all Muslim visitors, he has a track record of extreme overgeneralization and insults based on immutable characteristics of non-majority groups.
Because of this recent public track record, it doesn’t seem likely that Mr. Trump would be as quick to believe a white judge in his fraud lawsuit would be influenced by his whiteness as he thinks Judge Curiel is by Curiel’s Latino heritage. Imagine, for example, that Trump University were known for an ambitious affirmative action program, and the white judge presiding in the case were on record as believing that affirmative action is a bad policy. Would Trump assume that rulings against him by such a judge would best be explained by the judge’s white identity? It’s hard to imagine so. Instead, in Mr. Trump’s eyes, the judge likely would just be incompetent. Mr. Trump’s tendency to attribute moral failures to minorities and women more readily than to white men is deeply problematic because it implies that minorities are less capable of cabining self-interest and self-identity than are people who look like him.
And that goes a long way to explaining why the charge of racism against Mr. Trump is sticking with respect to his comments about Judge Curiel. Here, as elsewhere, discerning racism requires analysis of patterns and practices, and it is the larger context Mr. Trump has himself created that is contributing to the absence of trust among many Americans.