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Recognizing racism in Trump’s call for judge’s recusal

GOP presidential candidate Donald Trump has suggested a federal judge presiding over a suit related to Trump University has an inherent conflict of interest against Trump because the judge is of Latino descent.AP

First he called Latinos “rapists.” After that, Donald Trump forcibly ejected the country’s leading Latino journalist from a press conference, swiped at Jeb Bush for being married to a Latina, praised supporters who assaulted a Latino man, and sharply criticized the country’s only Latina governor — a fellow Republican. In terms of denigrating Latinos, that’s a hard list to top. But Trump’s most recent attack, this time against federal judge Gonzalo Curiel, is among his very worst.

Unanimously confirmed by the Senate, Judge Curiel is presiding over a lawsuit that accuses Trump of swindling students at the unaccredited Trump “University,” which Trump’s own employees have described as a fraud. At a recent rally, Trump said that Judge Curiel should step off the case, and then told the crowd, who had previously chanted “build that wall,” that Judge Curiel, born in Indiana, “happens to be Mexican.” That comment was widely criticized as coded racism. A week later, however, Trump doubled down, telling a reporter that Judge Curiel’s “Mexican heritage” disqualifies him from the case because, in Trump’s words, “I’m building a wall. It’s an inherent conflict of interest.” Being Latino, that is.


Only numbness to Trump’s streaming insults could spare this latest slur from becoming a campaign ender. But Trump’s attack on Judge Curiel should stand out, as it uniquely captures why he is unfit for office.

For starters, the attack is an unprecedented assault on the federal judiciary, a constitutionally coequal branch in the government that Trump seeks to lead. In the legal world, saying a judge has “a conflict of interest” means that he is unfit to preside over a case. In other words, it means he is unfit to do his job, because deciding cases, including sometimes politically contentious cases, is what judges do. Judges also have an independent obligation to recuse themselves in rare cases where an actual conflict exists, like a personal relationship to the litigants or a financial stake in the outcome. Judge Curiel, who received the American Bar Association’s highest rating as a nominee, surely knows these rules. Accusing him of failing to follow them is thus not only an attack on the judge’s competence and integrity, but also a stark demonstration of Trump’s dangerous disregard for the rule of law.


It is the logic of Trump’s attack, however, that is even more disturbing. After all, Trump made clear that he considers Judge Curiel inherently unqualified to preside over this fraud case because of the judge’s “Mexican heritage,” which Trump believes makes the judge innately biased. Of course, if being Latino is automatically disqualifying, no Latino judge could ever rule on the legality of any of Trump’s actions.

Astounding as this argument is, it’s not exactly novel. Forty years ago, defendants accused of violating the civil rights of black people or of women sometimes tried to prohibit black or female judges from considering their cases, a tactic used more recently against at least one gay judge in a prominent case about same-sex marriage. But such efforts to disqualify judges based on their race, gender, or sexual orientation have been consistently rejected, and for good reason. Judge Leon Higginbotham, the first black federal judge in Philadelphia, said it best when rejecting one such request. “I concede that I am black,” he wrote. “I do not apologize for that obvious fact. . . . However, that one is black does not mean, ipso facto, that he is anti-white.” And so too the fact that a judge is Latino does not mean, ipso facto, that he is anything else, including biased against Donald Trump.


Of course, Trump’s claim is even more audacious than those that came before, as the lawsuit against him has nothing to do with issues unique to Latinos. Trump’s point, rather, is that Latinos are inherently biased against him, and thus inherently incapable of assessing the legality of anything he does — including, presumably, any actions he might take as president. The federal judiciary, however, is routinely required to assess the legality of presidential actions. Trump’s statement that a Latino judge is inherently unqualified to do so thus calls into serious question whether he could ever appoint a Latino or Latina to the federal bench — or whether he would accept the legitimacy of a ruling against him by a Latino or Latina federal judge, or Supreme Court justice for that matter. Trump has already suggested that Muslim judges might also be biased against him. And given some of his other antics this past year, he may well consider African-Americans, Asian-Americans, women, and persons with disabilities similarly disqualified.


In asserting that a judge’s race renders him inherently unqualified to fulfill his constitutional oath of office, Trump’s latest attack reflects his progression from coded racism to outright racism. Any candidate who harbors such views is inherently unqualified to be president.

Andrew Manuel Crespo is a law professor at Harvard University. He has served as a law clerk to two Supreme Court justices and, in 2007, was elected the first Latino president of the Harvard Law Review.