The Donald and the Judge

By Cyberquill 06/08/201610 Comments

Speaker Paul Ryan, reacting to dontopedalogist*-in-chief Donald Trump’s assertion that Mexican-American Judge Gonzalo Curiel’s judicial stance in the Trump University matter derives from anti-Trump bias born out of a general Mexican displeasure with the specter of a Southern border wall that would complicate the evasion of immigration check points for those that prefer to cross the U.S.-Mexican border on the q.t., declared that “claiming a person can’t do their job because of their race is sort of like the textbook definition of a racist comment.”

* Dontopedalogy—the art and practice of putting one’s foot in one’s mouth

As we speak, pundits and politicians are practically falling over one another decrying Trump’s comments about Judge Curiel as “racist.”

But how is it necessarily “racist” to call into question a person’s impartiality because of their national descent, prejudiced and baseless as doing so may be?

Last time I checked, Mexico was a country, not a race. Just as Austria is a country, not a race. It seems a bit of a stretch, for instance, to condemn, on grounds that most Austrians are white, as “anti-white” the questioning of a white Austrian-American judge’s ability to rule fairly in a case whose defendant had proposed, say, a ban on immigration from Austria.

So to assume that Trump’s criticism of the judge was directed at his race rather than his national roots is to assume that if Trump were threatening to build another huge wall at the Canadian border (“and Canada will pay for it”), and a U.S. judge of Canadian ancestry had ruled against him in an unrelated matter, Trump would not be referring to that judge as unfair on account of his Canadian roots—whence that assumption?

Could it be that people who are so quick to throw around the r-word are, in a way, afflicted with the very same dysfunction that gives rise to racism itself, namely a propensity for jumping to conclusions without considering alternative explanations?

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  • Cheri

    Since we are on close to the same time zone this week, I thought I would answer the question in your last paragraph. The answer is YES. People love to throw around the word “racist” as a way of silencing a differing opinion. We see that all the time in academia and where we live--the San Francisco Bay Area. Here in Paris, in our seminar, the Canadians look down their noses and talk about anyone who might vote for Trump as insane. The French are worse. The Americans here in our seminar are trying to stay focused on Stendhal but several have injected snarky comments about Trump to try to lead some into the fray. The r-word has come up several times. Very timely post, Cy.

    • http://blog.cyberquill.com/ Cyberquill

      Use of the r-word has certainly spiraled out of control. Like m-fer, it seems to used more and more as a generic insult rather than in its literal sense.

      Please say hi to Paris from me. (Paris, of course, has no idea who I am.)

      • Cheri

        I’m not going to say hi to Paris from you until Paris cleans up her garbage. All designed to upset the French soccer tournament beginning this weekend. If only Napoleon Bonaparte were President, the Air France pilots wouldn’t even think of striking, the air traffic controllers would stop their threats and maybe the French would smile every now and then, just for kicks.

        • http://blog.cyberquill.com/ Cyberquill

          I, too, have rather French-ish smile. It’s more internal than plainly visible to the naked eye. Other than that, France is strictly flyover country to me.

  • Richard

    Article III, Section 2 of the constitution of the United States incorporates the Common Law. Under the Common Law, it is a contempt of court to suggest that a judge is biased.

    This is not so much for the protection of a judge as for the preservation of the due administration of justice. Donald Trump thus demonstrates a worrying attitude both to the law and the constitution and to the due administration of justice. If he were President, he would also be violating the constitutional principle of the separation of powers.

    In the House of Lords in 1996, a highly respected law lord, Lord Hoffman, adjudicated with other judges in a case concerning the extradition of Pinochet to Spain. Amnesty International was given leave to intervene in the case. Although not obliged to, Lord Hoffman did not invite the parties to object to his interest in Amnesty International in that he was a senior officer of that charity and his wife had been employed by it.

    Highly unusually for the House of Lords, on application by one of the parties, it vacated its decision and in a subsequent hearing reversed it.

    The issue does not therefore turn on whether Donald Trump was racist or not, but on whether a party to the proceedings chooses the proper course and makes objection to the Court. His offence is contempt of court and it is for the Supreme Court to respond if it deems fit.

    • http://blog.cyberquill.com/ Cyberquill

      There is contempt of court. There’s also the First Amendment. Not sure which one trumps, pardon the pun, the other when it comes to criticizing a judge in public as opposed to in his courtroom.

      The principle of separation of powers, to my knowledge, in no way curtails one branch’s right to scold and attack the other two.

      Aside from a few areas (which are irrelevant here) in which the U.S. Supreme Court has original jurisdiction, it has only appellate jurisdiction over actual cases and controversies, i.e., it can only respond to a lower court’s ruling that is brought before it with the request to review that decision. So should anyone actually sue Donald Trump for contempt of court, it’ll take years until the case moves up the chain and lands in the lap of the Supreme Court, if ever.

      Assuming, that is, that what we have on our hands here is a contempt of court situation in the first place. If it were, one would assume that Trump would get hammered in the media and by his detractors for alleged contempt of court as much as he’s getting hammered for alleged racism.

      Whatever Trump’s “real” offense may have been in this matter, it’s the racism angle that caught my, as well as most other people’s, attention.

      • Richard

        You rap me over the knuckles for trespassing outside the jurisdiction with which I am familiar, and rightly so.

        On the separation of powers point. Where do you draw the line on a President’s pronouncements concerning cases before the court? At an attempt to influence the outcome? Where he appears to the parties to have so influenced?

        It is curious from my perspective that the US Supreme has, as you state, no jurisdiction to determine a case of contempt on its own motion. Does the Attorney General have no say in this?

        Yes, the charge of racism is made too readily, not only in the US, in order to express unjustified indignation and promote a false sense of guilt and victimhood where there is no true argument. It can be rolled out at an emotional level indiscriminately in any issue, sometimes where there is a better cause, such as a judge’s bias, ostensible or otherwise.

      • http://blog.cyberquill.com/ Cyberquill

        The American system, as I have come to understand it over the years, is based on the freedom to openly and passionately attempt to persuade (= influence) one another, including other governmental branches, to do the right thing.

        That said, the Supreme Court, unlike high courts in other countries, such as the German Verfassungsgerichtshof, has (a handful of exceptions excepted) indeed no jurisdiction to inject itself unless and until a specific case with real litigants has wound its way up the entire appellate court chain. Even if Congress were to enact the most unconstitutional law ever enacted in the history of unconstitutional laws, the nine (currently eight) Justices on the highest court couldn’t do more than roll their eyes until an actual case that challenged the constitutionality of that very law in the context of a real-life dispute landed on their desk.

        I suppose judges, too, are free to vent and rant on talk shows and on social media, or hold press conferences, but they never do, presumably to avoid the perception of having made up their minds on a given issue prior to their presiding over an actual case, as this might complicate things and lead to motions by litigants for individual judges to recuse themselves. And so judges generally prefer to keep to themselves until they’re officially speaking from the bench.

        Where do I draw the line on a president’s pronouncements concerning cases before the Court in an attempt to influence the outcome? As long as he’s just making pronouncements, I’m not sure there even is a line. He has no authority to fire the judges, nor to dock (or raise) their pay in case their rulings aren’t to his liking. Short of offering bribes or issuing violent threats to the judges and their families, the president is free to jump up and down on his little executive podium and scream and yell and complain about the Court and its decisions into as many TV cameras he wants. It’s more a matter of personal decorum than a separation-of-powers violation.

        Contempt of court, I would guess, is something only the aggrieved judge himself would have the power to declare, not some third party, and certainly not another branch of government.

        So the Attorney General has no say in this, either. Mind you, the AG heads the Department of Justice, which, perhaps somewhat confusingly, is part of the executive branch of government, NOT the judical branch (as its name would suggest). The Attorney General, therefore, works directly for the president, not separately from the president, and in no way represents the judicial branch, its concerns, or its judges.

        You and I briefly touched on this some years ago, when you took exception to Obama threatening legal action against BP regarding the Gulf of Mexico oil spill. As I recall, you objected to the president meddling in legal matters, which you felt ought to be left to the judicial branch. Suing entities, such as corporations, foreign or domestic, for having violated U.S. law, however, is not up to the judicial branch but falls directly into the president’s wheelhouse, and the Department of Justice is tasked, among other things, with conducting litigation on his behalf. One could, I suppose, think of the DOJ as the president’s lawyers, as well as the president’s police force (= the FBI).

        • Richard

          I have further cause to regret breaching the border between English and American law. District Judge Curiel, of Mexican descent, but born and raised in Indiana, sent this class action for trial and at that point Donald Trump took the public platform to accuse him of bias.

          In England, no case for libel or slander would be likely to succeed sgainst him because he would raise the defence if public interest, although such utterances made with malice do not enjoy the defence.

          All this leaves a judge with lesser rights than the general citizen. His only course is to bring the utterer before him for contempt -- a very rare occurrence indeed. I have seen a judge grossly abused in an English court and have been mightily impressed by the nonchalence with which the abuse was received. Not even a shrug of the shoulders. That is the practical situation because contempt involves bringing the administration of judtice into disrepute, a threat to all our rights.

          So what is to be done to protect the ordinary American citizen?

          Can there be no abuse of the right to freedom of speech? Certainly in England laws of libel and slander are too generous, a heated topic in the nation’s newspapers. Applied properly, however, the defence of public interest should suffice and the newspapers are not backward in coming forward in their criticism of a judge whose findings are wrong, and they do so with impunity. An accusation of bias must be grounded in fact and the law provides a remedy.

          While a case is before an English court, no respectable political figure would comment upon it. Yet an MP is free to do so on the floor of the House of Commons since he can say whatever he likes, even maliciously. After the case is finally decided, anyone can let rip anywhere. An accusation of bias, however, risks an action for contempt, which in my view strikes the right balance in favour of the citizen.

        • http://blog.cyberquill.com/ Cyberquill

          It’s complicated. No freedom is absolute. The freedom of speech famously doesn’t include the freedom to yell “fire” in a crowded theater and cause a panic.

          And then there exist a few anti-libel & defamation laws, designed to protect ordinary citizens more than public figures, as the latter are assumed to have access to a megaphone to defend themselves that the average person does not have, plus it’s of course illegal to incite riots or to threaten violence against specific groups or individuals.

          The exact extent to which these laws may abridge freedom of speech without violating the constitutional protection against such abridgement is being perpetually debated.

          The predominant American attitude appears to be, “I may despise what you say, but I’ll defend to my death your right to say it.” (More often than not probably meant in a figurative rather than literal sense.)

          Among the vexing questions that arise are whether money equals speech, as money acts as the volume control — the more flyers you can afford to print, the more people will get your message, so does a legal limit on the amount of money you’re allowed to spend on getting your message out amount to an abridgement of your freedom of speech? — and whether the freedom of speech includes the freedom not to divulge certain types of information, such as the speaker’s identity. (Some laws prohibit the anonymous publication of certain messages, like political ads.)

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