Even as legal experts express their alarm over Donald Trump’s remarks about U.S. District Judge Gonzalo Curiel (who is presiding over the fraud cases against Trump University), the presumptive Republican presidential nominee decided to double down.
In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.
So here’s how that breaks down: Trump makes racists proposals against Mexican immigrants and then assumes that presents a conflict of interest for a judge with Mexican heritage. Based on all of his racist and sexist comments, that might wipe out a pretty good portion of the judiciary from ever presiding over a case in which he is involved.
But there is something deeper at work here. I have no illusions that a man like Trump will ever understand it. But it’s important for us to be clear about what it means to single a judge out for their ethnic heritage.
As I’ve been watching this unfold, I am reminded of the Republican attacks on Supreme Court nominee Sonia Sotomayor. Because of her compelling story and exemplary career, they settled on going after her for her remarks about a “wise Latina.” They were part of a lecture she gave in 2009 titled: A Latina Judge’s Voice” in which she addressed the question of what it means to have more women and people of color on the bench.
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life…
Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
Now…compare that to what Sam Alito said during his confirmation hearing when Sen. Tom Coburn asked him to let us see a little bit of his heart.
…when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.
And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.”
The only real difference between what Sotomayor and Alito said is that her family is from Puerto Rico and his are from Italy. And yet one nominee’s words were cause for a firestorm and the other’s were heralded as heartfelt – when noticed at all. That is what happens in a white patriarchal culture where “norms” are established as the default mode for expectations.
Let’s take a look at how Justice Sotomayor ended her lecture.
Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.
One has to wonder whether Justice Alito questions his own assumptions, presumptions and perspectives that stem from being a white male on the court. The systemic bias we witness in the courts is largely a result of the failure to do so.