New York Times (Editorial)
June 6, 2016
Federal judges have repeatedly and emphatically refused to recuse themselves from cases because of their race or ethnicity. These rulings were driven by two realizations: Ethnically based challenges would reduce every judge to a racial category, which would be racist in itself. And such challenges would make judges vulnerable to recusal motions — for reasons of race, ethnicity, gender or religion — in every case that came before them.
In other words, once these challenges were allowed, there would be no end to them.
The gravity of this matter has clearly eluded Donald Trump, who has cast aside the Constitution and decades of jurisprudence by suggesting both ethnic and religious litmus tests for federal judges. These pronouncements illustrate that Mr. Trump holds the rule of law in contempt.
Mr. Trump started down this road months ago, attacking a federal judge in California who is hearing a lawsuit against the now-defunct Trump University. Last week, he asserted that the judge, Gonzalo Curiel, had an “inherent conflict of interest” because he was “of Mexican heritage.” Mr. Trump implied that Judge Curiel — an American, born in Indiana — was biased against him because he intended to build a wall along the border to stop illegal immigration.
Republican leaders repudiated the remarks and hoped that the issue would disappear. But Mr. Trump went further on Sunday, when he said on the CBS News program “Face the Nation” that a Muslim judge might be similarly biased against him because he has proposed a ban on Muslim immigrants entering the United States.
When the interviewer, John Dickerson, reminded Mr. Trump that this country has a tradition of not judging people based on heritage, the presumptive Republican nominee responded, “I’m not talking about tradition, I’m talking about common sense.”
Republicans who say they disagree with Mr. Trump’s racialist statements have tried to assuage the public by arguing that he doesn’t really believe those views. But if that’s the case, it is pretty cold comfort. Cynically choosing to equate ethnicity with bias is hardly more appealing than simply being ignorant or bigoted.
Let’s indulge Mr. Trump for a moment and consider what the court system would look like if litigants were permitted to wish away judges who had been born into immigrant families or families that practiced what the litigants regarded as the wrong faith.
Would exclusion be limited to first-generation Americans like Judge Curiel, who was born to Mexican immigrant parents, or would it be extended to his children, his grandchildren or even beyond? Would the exclusion of Muslims be limited to active practitioners of the faith or extended to descendants who were only vaguely religious or not religious at all? The answer, of course, is that once it started, the ethnic cleansing of the court system could be made to apply to any unpopular group at any time.
Mr. Trump is essentially arguing that his own bigoted attitude toward Mexicans has disqualified a respected jurist from hearing a court case in which he is a defendant. Under that bizarre logic, he could rationalize ruling out judges from every demographic group he has insulted or happens not to like. At the rate he’s going, there would soon be no person in the land left to judge him. Fortunately, the American legal system doesn’t work that way.
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