Donald Trump’s criticism of U.S. District Judge Gonzalo Curiel, who is presiding over a lawsuit charging Trump University with fraud, wasn't an attack on judicial independence. It was an attack on the idea of justice itself.
Politicians can criticize judges, even in ignorant and demagogic ways, without posing a threat to the courts’ ability to render decisions that follow the law. President Barack Obama was accused of undermining judicial independence when he expressed opposition to the Supreme Court’s decision in Citizens United. But Obama wasn’t threatening official reprisals against judges who make decisions with which he disagrees. Neither is Trump. The only implicit threat he is making is that as president he would react to an adverse decision by Curiel with more bluster. The judge has withstood worse.
It’s the specific terms of Trump’s argument that run counter to our system of justice. Trump says that his immigration proposals, including building a wall between the U.S. and Mexico, will help the country as a whole, including Hispanics. Nevertheless, most Hispanics oppose Trump strongly. Hence Curiel has a conflict of interest, which has manifested in decisions against Trump. He should, Trump has said, recuse himself or be investigated.
Trump’s lawyers have won some motions and lost some in front of the judge. They have not sought a recusal and have praised Curiel’s handling of the case. So Trump’s complaint seems neither serious nor credible.
The complaint is, however, sweeping in its implications. Curiel may indeed oppose Trump’s wall: Being Hispanic raises the likelihood that he does; being an Obama appointee raises it still more. The accusation that because he may disagree with Trump about politics he cannot be an impartial judge is a large and slanderous leap from that possibility.
If Trump’s argument is right, it doesn’t just call into question Hispanics’ fitness for the bench. It means that judicial decisions cannot be respected if they occur in a society that is riven by strong political disagreements — a society such as ours.
To Trump’s defenders, what he is saying is not all that different from what Justice Sonia Sotomayor said before she joined the Supreme Court. “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,” she said, an obnoxious comment that excludes her from the category of wise Latinas.
But the right parallel isn’t between Trump and the liberal justice. It’s between him and the black radicals of the 1960s and 1970s, for example, who said they could not get a fair trial in our country.
Trump is making a poisonous accusation, one that he will not make his lawyers follow up, to contain the public relations damage from credible charges that his “university” was a scam. It’s extremism in defense of self-interest.
Yet Trump’s behavior toward Curiel, appalling as it is, is not a reason for Republicans to reject him as their nominee at their convention. A few months ago, when it looked as if Trump might win only a plurality of the delegates, his supporters said he would still deserve the nomination. Any other result would mean that party elites had “stolen” it from him.
It was a spurious argument. But dumping him now really would be stealing the nomination. He won a majority of delegates. What’s more, no new information has come to light bearing on his fitness for the nomination or the presidency. Well before his recent criticisms of the judge, there were reasons to think he was petty, self-indulgent, eager to exploit prejudice and electorally risky. Republican primary voters chose him anyway.
Those Republican politicians who are edging or sprinting away from their endorsements of Trump have even less reason to say they were fooled. They had been paying closer attention to Trump than most voters. They had every reason to think he would tarnish the reputations of those who endorsed him. Those who thought Trump would “pivot” to being a decent person or “tone down” his indecency deluded themselves.
Even if he quits attacking Curiel, as he promises, Trump will find other ways to demonstrate that Republicans made a bad decision. But it’s a decision they’re stuck with.