Judge may be wrong, but Trump's attack is inadmissable

By David T. Jones on June 19, 2016

Washington,DC - Sometimes there doesn’t seem to be a single category for controversy into which Donald Trump, putative Republican nominee for president, doesn’t plunge.  Or that he epitomizes the sobriquet that he opens his mouth only to change feet.

Although Trump is now engaged with critics/opponents over his comments regarding the mass killing in Orlando, Florida, other slanging matches remain unresolved albeit not (entirely) forgotten.  The penultimate high-profile contretemps was a nasty barrage of vituperation from Trump against Gonzalo P. Curiel, the federal judge trying a class action suit against Trump brought by individuals formerly enrolled in Trump University.  Plaintiffs in the class action suit charged fraud; that Trump/his academic facility over-promised and under-performed in the area of professional training and future success following their studies.  Unsurprisingly, Trump/lawyers for the now defunct university claimed otherwise.  Essentially, they argue there were many successful graduates and that the fault lies in the personal failures of the plaintiffs rather than any professional failures of the teachers/staff in the university.

The issue generating the Trumpestian tempest is Judge Curiel’s decision to allow a class action suit to proceed and to release certain Trump University documents and depositions in response to a Washington Post request.  Trump responded with his usual infuriated, over-the-top rhetoric claiming Curiel is prejudiced against him because he proposed to build a wall on the U.S.-Mexican border, that he is a “Mexican” (Not true; Curiel is USA born), and should recluse himself from the case.

Such is the rhetoric of the circumstance.  Trump is not only wrong, but stupidly wrong in his insulting, semi-racist rhetoric against Curiel.  In the terms of previous observers including 19th century French diplomat/politician Charles-Maurice de Talleyrand, “It was worse than a crime, it was a stupidity.”  With the federal judiciary (and indeed all judiciary) rallying around Curiel, Trump is more likely to receive a Divine blessing than a Curiel recusal.

But on the larger issue of Curiel’s personal attitudes, Trump may have a point.

Certainly nobody who has finished grammar school believes in the immaculate nature of judges and justice.  Let alone that judges are invariably correct in their decisions.  Indeed, history demonstrates a virtually endless stream of egregious decisions, either jettisoned by the passage of time or reversed by later legal review:

-The Dred Scott decision by Supreme Court Chief Justice Taney declaring that no African American could become a U.S. citizen and had no rights that need be respected;

-“Separate but equal” decisions that justified racial segregation;

-Miscegenation laws forbidding interracial marriage and subsequently laws declaring marriage was between one man and one woman;

-Legal decisions justifying incarceration of Japanese-Americans during World War II.

Obviously, juridical judgments regarding Trump University are hardly equivalent, but they demonstrate that judges can be totally wrong in their decisions.

Moreover, it is clear from the pattern of legal decisions that certain courts have certain preferences.  Prosecutors and attorneys “judge shop” seeking a sympathetic ear on the bench.  Reportedly, the Florida Attorney General solicited a political contribution from Trump prior to addressing an issue relating to lawsuits against the Trump University.  Gun owners, for example, are unlikely to find protection for their views on Second Amendment rights in the Ninth Circuit Court, which takes a decidedly liberal view on issues, most recently essentially rejecting the right of “concealed carry” for gun owners.  

And judges blatantly bring their personal beliefs with them.  Judge Rose Bird, one-time Chief Justice of the California Supreme Court, overturned the death penalty in every one of 64 cases that came before the court; she was defeated for re-election in 1986 due to her categorical opposition to the death penalty. 

The most prominent current noteworthy is Supreme Court Justice, Sonia Sotomayor, the first Hispanic on the court, who said frankly, “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.”  Such an attitude makes it daunting for a non-Hispanic white male to argue a case before her.

So far as Judge Curiel is concerned, one newspaper editorialized that his affiliation with the San Diego La Raza Lawyers – an organization promoting “radical immigrant rights” – could leave the impression of bias against Trump.  Nor are we regarding Curiel as another Judge Holmes, Brandis, or Scalia—his law school (Indiana) ranks 25th among law schools.

Time will tell if Judge Curiel’s decision is reversed, but it doesn’t make Trump’s comments any less inadmissible.


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