The “Mexican” Judge

Alberto A. Martinez

Federal Judge Gonzalo Curiel in 2016.

MEDIA MEME:

During the class-action lawsuit against Trump University, Donald Trump said that Judge Gonzalo Curiel was incapable of being a fair judge because he is Mexican. This is the very definition of racism. Therefore, Trump is racist.

WHAT REALLY HAPPENED:

After Judge Curiel issued some negative rulings, Trump said that Curiel was “hostile,” and that he is Spanish or Hispanic, which Trump said is fine, but that “perhaps” Curiel was biased because Trump planned to be tough on the Mexican border. Trump later said Curiel was “a hater of Donald Trump,” who should recuse himself because of his consecutive negative rulings. Trump said Curiel is Mexican, “which is great.” (Curiel’s parents were Mexican; he was born and raised in the United States.) Trump said that as President he would love to appoint Mexican-American judges to the federal courts. But later, Trump again said that Curiel “should have recused himself, not only for that, for other things.” Right then, political pundits interpreted Trump to mean that Curiel cannot be fair because he is of the Mexican race. Therefore, they portrayed Trump as racist, as if being Mexican were a race.

Trump’s belligerent insults against Curiel were self-serving and demeaning. But Trump gave various reasons for doubting Curiel’s impartiality: issuing consecutive judgments against Trump, being “Mexican” when Trump’s border policy is unfavorable to Mexicans, being a member of a Latino lawyers’ association (confusing it with one that condemned Trump), etc. Pundits disregarded Trump’s claims and inferred that he opposed Curiel out of racism. However, Alberto R. Gonzales —a Mexican-American law professor, former judge and U.S. Attorney General— explained that by itself Mexican ethnicity is certainly not grounds for posing an alleged conflict of interest, but that Trump had “a right to ask” if Judge Curiel was fair, and to protect “his constitutional right to a fair trial.” Gonzales argued that all judges should avoid the “appearance of impropriety,” yet Curiel himself had appointed, as lawyers for the plaintiffs against Trump, a law firm that paid $675,000 to Trump’s political rival, Hillary Clinton.


 

In February 2016, Trump held a campaign rally in Arkansas in which he claimed that Judge Gonzalo Curiel was treating him unfairly: “There’s a hostility toward me by the judge—tremendous hostility—beyond belief. I believe he happens to be Spanish, which is fine. He’s Hispanic—which is fine.”

Then, Trump told Fox News that Curiel was biased against him, “extremely hostile to me,” maybe because of his policies on illegal immigration and building a wall along the border between the US and Mexico: “I think it has to do perhaps with the fact that I’m very, very strong on the border, very, very strong at the border.”

At the time, Curiel was overseeing a class-action lawsuit, which began in 2010, against Trump University. Curiel was the third judge presiding over the case. He inherited the case in early 2013. The plaintiffs complained that they each paid up to $35,000 to take courses at Trump University but were defrauded. The seminars purported to teach Trump’s strategies for investing successfully in real estate.

Thus, the so-called Trump University became a campaign issue. It had shut down in 2010. In March 2016, some former students told the New York Times that they felt pressured by instructors to give positive reviews to their course of study.

There were three lawsuits against Trump University, and Judge Curiel was presiding over two of them. To avoid influencing the election, Judge Curiel set the date of trial to happen after the presidential elections of November 2016. He set November 28 as the date of the trial, citing his aim to avoid a “media frenzy” about the selection of jurors.

Still, a media storm exploded when it seemed that Trump claimed that we should discriminate against a Judge because of his identity: be it race or ethnicity

The idea of discriminating in a courtroom, of all places, against someone because of their race is repulsive. Still, it is not at all a foreign event in American courtrooms nationwide. In particular, lawyers often discriminate racially against prospective jurors. Prosecutors have heard that “people of color” tend to be more pro-defendant, and thus some prosecutors try to remove jurors of color. Similarly, criminal defense lawyers have heard that white people tend to be more trusting of the criminal justice system, therefore some such defense lawyers try to remove some white people from the jury pool.

On May 27, 2016, Trump was holding a campaign rally in San Diego, California. He took the opportunity to criticize Judge Curiel: “I have a judge who is a hater of Donald Trump—a hater. He’s a hater. His name is Gonzalo Curiel. And he is not doing the right thing.”
Trump complained about Curiel for twelve minutes.

Trump’s claim that Curiel was “a hater” was egregious. He had received some unfavorable rulings from Curiel, but that hardly qualifies as hatred.

Still, Trump insisted: “We’re in front of a very hostile judge. The judge was appointed by Barack Obama.” Trump said that Judge Curiel “should recuse himself because he’s given us ruling after ruling after ruling: negative, negative, negative.” Trump said that the judge should “be ashamed of himself.” Trump argued that the court system should look into how Curiel was handling the case “Because what Judge Curiel is doing is a total disgrace, OK?”

Trump complained about being “railroaded by a legal system,” and in his usual, boastful optimism, said that he would win the trial. (And he was wrong.)

“What happens is the judge, who happens to be, we believe, Mexican, which is great. I think that’s fine,” Mr. Trump said.

As many newspapers promptly pointed out, Curiel’s parents were Mexican but he was born in the city of East Chicago, Indiana, in 1953. He earned his law degree at Indiana University in 1979. He then spent a decade in private practice in Indiana and California.

Next, he served as an Assistant U.S. Attorney in California’s Southern District, working in the Narcotics Enforcement Section. As part of Narcotics Enforcement, Curiel helped to prosecute the Mexican criminal cartel of Benjamín Arellano Félix, who was arrested in 2002 and convicted of heading violent and deadly drug transactions between Mexico and the U.S. Discussing the case with the New York Times, Curiel said that being of Mexican descent was useful, partly because he could thus speak Spanish. And Curiel added: “When it comes down to it, this involves the country of our parents.”

In 2006 the Republican Governor of California, Arnold Schwarzenegger, appointed Curiel as a San Diego Superior Court judge. President Obama nominated Curiel as a federal judge for the Southern District of California in 2011. During a Senate confirmation hearing in 2012, Curiel told the Senate committee: “My parents came here from Mexico with a dream of providing their children opportunities and they’ve been able to do that with the opportunities that this country has to offer.”

On June 2, Trump said that Judge Curiel had “an absolute conflict” because of his “Mexican heritage” and being a member of a Latino lawyers’ association. He said: “I’m building a wall. It’s an inherent conflict of interest.”

Trump also claimed that Curiel was a former colleague and friend of Jason Forge, one of the lawyers for the plaintiffs who were suing Trump University. However, Forge told the Wall Street Journal that although the two once worked together as federal prosecutors, they never saw one another socially.

The Hispanic National Bar Association promptly defended Curiel against Trump’s latest remarks.
The association’s President, Robert T. Maldonado, stated: “Donald Trump continues to belligerently inject racial bias and divisive politics into his legal battles over the now-defunct Trump University.” Maldonado added: “It shows a dangerous disregard and disrespect for separate and coequal branches of government.”

In an interview with the New York Times, Trump complained: “I have a Mexican judge. He’s of Mexican heritage. He should have recused himself, not only for that, for other things.” In turn, Raul Curiel said that Mr. Trump was “ignorant” for calling his brother Mexican, noting that they were born in the United States.
Speaking with the New York Times, despite citing the judge’s heritage as a source of the conflict, Mr. Trump said that as president he would have no problem appointing Mexican-American judges: “I would love to,” he said. “I would do it in an instant.”

On June 3, TIME ran an article good by Haley Sweetland Edwards. She dismissed Trump’s argument: “Legal scholars roll their eyes at Trump’s line of attack. There is nothing in the U.S. Constitution—and no U.S. law, regulation or code of judicial conduct—that suggests that a judge must recuse him or herself because of race, gender, ethnicity, sexual preference, or any other aspect of someone’s personal identity. After all, no judge is free from these categories.”

As one example, TIME quoted Stephen Burbank, a law professor at the University of Pennsylvania. “The notion that a judge has to recuse him or herself because of racial makeup, religious background, gender or ethnicity—it’s all just nonsense. It’s absolute nonsense.”

Likewise, Arthur Hellman, a law at the University of Pittsburgh, said that if judges had to recuse themselves for being minorities of some kind, then it would result “in chaos,” because then judges would constantly be removed from cases. Instead, in the United States it is common and fair that judges who are members of minority groups can well oversee cases that any issues, including issues about civil rights, race, ethnicity, and religion.

In 1974, Leon Higginbotham, an African American district judge, rightly refused to recuse himself from a case involving racial discrimination. He wrote:

“I concede that I am black. I do not apologize for that obvious fact. I take rational pride in my heritage, just as most other ethnics take pride in theirs. However, that one is black does not mean, ipso facto, that he is anti-white; no more than being Jewish implies being anti-Catholic, or being Catholic implies being anti-Protestant.”

Similarly, Haley Sweetland Edwards gave other good examples. In 1998 Denny Chin, a federal judge, refused to recuse himself for being of Asian descent, even though the defendants’ lawyers complained because the press had portrayed the defendants as anti-Asian. In 2014, federal judge Paul Borman, who is Jewish, was asked to recuse himself from a case involving Palestinians.

Even if Trump did not know the law, or if he acted as if he did not know it, his lawyers however did know, and they did not file any motion to remove Judge Curiel from the fraud case. One of Trump’s public representatives, Kayleigh McEnany, told CNN that Trump “should have not mentioned the judge’s heritage,” admitting that “There is no viable argument there that because of his heritage that he is somehow biased.”

Trump was roughly applying to a judge what is daily assumed of many laypersons: that they favor their own ethnic group. However, unlike laypersons, judges are expected to be impartial in how they carry out the law.

In an interview on CNN, on June 3, Trump repeated his claims: “I have had horrible rulings, I have been treated unfairly by this judge,” said Friday. “Now this judge is of Mexican heritage, I’m building a wall.” He added: “He’s a member of a society, where you know, [it’s] very pro­Mexico and that’s fine, it’s all fine,” Trump continued. “But I think he could recuse himself.”

Trump was wrong in acting as if the judge’s Mexican ethnicity was grounds for recusal. Still, one might ask whether previous presidential candidates had ever managed to remove a judge from a case. In the Wall Street Journal, Brent Kendall gave one such example. In the 1996 presidential campaign, both of the top party candidates, Bill Clinton and Bob Dole, criticized federal judge Harold Baer for excluding prosecutors’ evidence in a prominent narcotics case. Although other judges defended Harold Baer right then, he later reversed his ruling and recused himself from the case.

Whereas news reports about Trump’s views on Curiel generally did not call Trump “racist,” multiple op-eds did just that. For example, in the Boston Globe, Andrew Manuel Crespo published an op-ed titled “Recognizing Racism in Trump’s Call for Judge’s Recusal.” As evidence of Trump’s racism, Crespo’s very first sentence was:

“First he called Latinos ‘rapists.’”

Crespo’s very first sentence illustrates how much newspaper editors nowadays allow op-ed writers to misrepresent quotations. It’s a shameful example of editorial incompetence. Crespo could have done any of the following:

1. Quote what Trump actually said.
2. Or worse, write that Trump said that Mexican “illegal immigrants” are rapists.
3. Or even worse, write that Trump said that all Mexican immigrants are rapists.
4. Or grotesquely worse, write that Trump said that Mexicans are rapists.
5. Or insanely worse, write that Trump said that all Mexicans are rapists.
6. Or generalizing even more, write that Trump said that Latinos are rapists.

All such exaggerations were published in op-eds nationwide. All were allowed as fair claims by newspaper editors. Crespo chose option #6, in order to bolster his case that Trump is a racist. After listing several other transgressions, Crespo wrote that Trump’s attack on judge Gonzalo Curiel “is among his very worst.”

Crespo argued that Trump’s remark that Curiel “happens to be Mexican” was “widely criticized as coded racism.” Crespo conjectured that Trump’s “latest slur” did not end his campaign only because people had become numb to Trump’s constant insults. According to Crespo, Trump’s words were “an unprecedented assault” on the federal judiciary, and an example of Trump’s “dangerous disregard for the rule of law.”

As I wrote in chapter 4, there are splitters and lumpers.

A splitter could perhaps argue that Trump was criticizing Curiel because (1) Curiel had issued multiple consecutive rulings against Trump, and (2) Trump therefore speculated that Curiel was biased against him because of Trump’s remarks towards Mexicans. A splitter would say that just because Trump disliked one Mexican-American judge that does not mean that he dislikes all Mexican judges or more generally, all Hispanic or Latino judges. A splitter might even provide evidence, for such claims, say, by quoting Trump’s claim that as president he would love to appoint Mexican-American judges.

A lumper, instead, could argue that since Trump criticized Curiel, and Curiel’s parents were Mexican, then Trump thinks that no persons of Mexican descent should ever be allowed to be judges in the United States. Or generalizing more, a lumper might lump Mexicans with all Hispanics or Latinos, and thus say that Trump really meant that no Hispanics or Latinos should be judges. This is what Crespo did in the Boston Globe. He invented the claim that Trump believed that Curiel is “innately biased” because of his Mexican heritage, and then Crespo wrote: “Of course, if being Latino is automatically disqualifying, no Latino judge could ever rule on the legality of any of Trump’s actions.”

Crespo continued: “Trump’s point, rather, is that Latinos are inherently biased against him, and thus inherently incapable of assessing the legality of anything he does…”

Crespo continued piling generalization upon guesswork, anything to make Trump seem brutally racist. Crespo speculated that Trump might never appoint a Latino to the federal judiciary, and that he might not accept rulings by Latinos against him. Crespo further speculated that Trump “may well consider African-Americans, Asian-Americans, women, and persons with disabilities similarly disqualified.”

As if all of this were not enough, Crespo created another fiction: “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.” The problem with this claim is that Trump said no such thing. He didn’t say that being of a certain race makes one unqualified to be judge.

Crespo failed to take into account a basic fact: that being Mexican is not a race. Mexico is a large country with many racially diverse groups of people. There is no such thing as the Mexican race. Being Mexican is many things: a nationality, one or many ethnicities, an identity, having a particular heritage, and more. But it’s not a race. (Apparently Crespo speculated that Trump thinks that being Mexican is a race, and he thinks that members of that race should not be allowed to serve as judges in the United States.)

One might shrug off Andrew Manuel Crespo’s gross exaggerations and distortions as typical and permissible, since, after all, “it’s just an op-ed.”

However, Crespo was not just a random commentator. He is a law professor at Harvard University! He’s a former law clerk to two judges in the Supreme Court, and the first Latino president of the Harvard Law Review.

It is frankly astonishing that someone with such preparation, someone who should know better, and who should be wary of making incendiary and egregious generalizations, would himself do just that. My guess is that this op-ed was published, as it is, precisely because the author is a law professor at Harvard. But instead, the editor should have done the editor’s job.

Thus, someone reading Crespo’s op-ed in the Boston Globe could well think: “I may not be a law professor at Harvard, but this law professor at Harvard is reading too much between the lines; Trump just didn’t say those things.”

In an interview with CNN, on June 5, 2016, Trump again repeated his criticisms. Trump denied that his critique was racist. And he briefly complimented Curiel: “He’s proud of his heritage. I respect him for that.”

Meanwhile, on Fox News, Trump’s strong supporter Newt Gingrich admitted that what Trump said about Curiel “was one of the worst mistakes Trump has made. Inexcusable.” Gingrich opined that Curiel “is not a Mexican. He’s American.”

This last point was noted or insinuated in many news reports too. The writers and speakers apparently assumed that when Trump said that Curiel “is Mexican” he must have meant that Curiel is a citizen of Mexico, born and raised in Mexico. Thus, since he was really born in the United States, their point was that Trump was clearly wrong.

Many articles noted that Trump called Curiel “Mexican” and then immediately the articles stated that Curiel was born in the United States. Gotcha. What reporters and pundits failed to admit, however, is that many people born in the United States, of Mexican parents, consider themselves not only American but also Mexican. At least for me, calling Curiel “Mexican” is not an insult, not at all. But for lumpers it was another senseless assault by Trump against an American.

In Cosmopolitan, Jill Filipovic began an article by plainly stating: “Donald Trump is a racist.” Like others, she made her argument by hearing not just what Trump said, but what he allegedly implied. Trump’s critique of Curiel was racist, she said, because of “The implication: Certain groups of people are simply less capable of performing the duties of their job than others, based solely on their identity and not actual ability.”

Filipovic insisted that “It’s not about just one judge.” She inferred that Trump meant that only straight white men can be neutral, and that everyone else is deviant. Instead of bothering to check whether it was true that Curiel had issued several consecutive judgments against Trump, as Trump claimed, Filipovic simply said: “Curiel has done nothing other than exist to suggest that he is biased.” For Filipovic, Trump’s views were “the definition of bigotry and racism.” She further claimed that Trump “has run a campaign of unapologetic racism, from suggesting Mexicans are rapists, to wanting to build a wall along the border,” etc.

As usual, note the word “suggesting.” The author could not even say that Trump said what she claimed. So, he suggested it. He insinuated it. He implied it. He used secret codes.

And as usual, Filipovic made no mention that whereas Trump wanted to build a wall, Senator Hillary Clinton and Senator Barack Obama actually voted in favor of building a 700-mile barrier between the U.S. and Mexico. Presidents Bush and Obama supported the project, thus building more than 650 miles of fences, walls, and barriers during Obama’s administration. Again, there was no mention, not even a hint, of the millions of minorities that were deported from the U.S. during the presidencies of Clinton, Bush, and Obama.

Again, Filipovic complained that Trump wanted to ban “Muslims traveling to the U.S.” (false, he proposed to temporarily stop immigration of Muslims), but she expressed no concern at all for the hundreds of thousands of Muslims who were prevented from immigrating into the U.S. during the administrations of Presidents Bush and Obama. Neither did she express any concern for the hundreds of thousands of Muslims who were killed by military actions by the U.S. in various countries in the Middle East and in Africa.

This article in Cosmopolitan did not mention past political acts, laws, policies, and wars that led to exclusion, segregation, oppression, migration, and death of foreigners of various ethnicities. Were these acts of racism? In contrast, Trump’s careless and impulsive words, and above all, his alleged innuendos, were portrayed as intolerable and grotesque acts of racism. They were the definition of racism. Similarly, a writer in Slate complained about how Trump’s “racist overtones,” and “racist dog whistles,” had now converted into “overt racism.”
I’m not trying to defend Trump. I think that his critiques against Curiel were egregious, ignorant, demeaning, and unacceptable. What I’m trying to point out is that journalists and op-ed writers are too often far more concerned with words than with deeds. I don’t know if it’s a kind of hypocrisy or a kind of thoughtlessness. They can let countless murders and brutal acts of racism happen without a comment. But God forbid if a former reality television person, an amateur politician, Donald Trump, said something that sounded offensive.
The Speaker of the House of Representatives, Paul Ryan, commented on the issue of racism. He spoke at an event unveiling the Republicans’ project to fight poverty in America. Ryan said: “Claiming a person can’t do their job because of their race is sort of like the textbook definition of a racist comment.” He added: “I think that should be absolutely disavowed. It’s absolutely unacceptable.” But in that sentence, Ryan did not even name Trump. Ryan had disavowed Trump’s remarks, but didn’t retract his endorsement.
The New York Times claimed that Trump “openly injects race into the campaign.” (Again, as if being Mexican were a race.) The Republican Governor of Indiana, Mike Pence, called Trump’s remarks “inappropriate.” Democrat spokesman Drew Anderson called Trump’s remarks “racist statements.” But again, the question is: Did Trump say that Curiel could not be a judge because of his race?
Many Republicans called on Trump to retract his words. But as usual, Trump did not apologize. Yet on June 7 he issued a statement vowing not to discuss the case Trump University anymore. He wrote:

It is unfortunate that my comments have been misconstrued as a categorical attack against people of Mexican heritage. I am friends with and employ thousands of people of Mexican and Hispanic descent. The American justice system relies on fair and impartial judges. All judges should be held to that standard. I do not feel that one’s heritage makes them incapable of being impartial, but, based on the rulings that I have received in the Trump University civil case, I feel justified in questioning whether I am receiving a fair trial.

Over the past few weeks, I have watched as the media has reported one inaccuracy after another concerning the ongoing litigation involving Trump University. There are several important facts the public should know and that the media has failed to report.
Throughout the litigation my attorneys have continually demonstrated that students who participated in Trump University were provided a substantive, valuable education based upon a curriculum developed by professors from Northwestern University, Columbia Business School, Stanford University and other respected institutions. And, the response from students was overwhelming. Over a five year period, more than 10,000 paying students filled out surveys giving the courses high marks and expressing their overwhelming satisfaction with Trump University’s programs. For example:
Former student Tarla Makaeff, the original plaintiff in the litigation, not only completed multiple surveys rating Trump University’s three­day seminar “excellent” in every category, but also praised Trump University’s mentorship program in a glowing 5 plus minute video testimonial. When asked “how could Trump University help to meet [her] goals”, she simply stated “[c]ontinue to offer great classes.” Once the plaintiffs’ lawyers realized how disastrous a witness she was, they asked to have her removed from the case. Over my lawyers’ objections, the judge granted the plaintiffs’ motion, but allowed the case to continue.

Art Cohen, a lead plaintiff in the litigation, completed a survey in which he not only rated Trump University’s three­day seminar “excellent” in virtually every category, but went so far as to indicate that he would “attend another Trump University seminar” and even “recommend Trump University seminars to a friend.” When asked how Trump University could improve the seminar, Mr. Cohen’s only suggestion was to “[h]ave lunch sandwiches brought in” and make the lunch break 45 minutes.

Former student Bob Giullo, who has been critical of Trump University in numerous interviews and negative advertisements from my political opponents, also expressed his satisfaction, rating Trump University’s programs “excellent” in every category. When asked how Trump University could improve its programs, Mr. Giullo simply asked that students be provided “more comfortable chairs.”

Indeed, these are just a few of literally thousands of positive surveys, all of which can be viewed online at www.98percentapproval.com.

For those students who decided that Trump University’s programs were not for them, the company had a generous refund policy, offering a full refund to any student who asked for their money back within 3 days of signing up for a program or by the end of the first day of any multi­day program, whichever came later.

Trump’s statement continued, he reiterated some of his same points about why he doubted Curiel’s fairness, especially his reported professional associations. Trump also asked for a fair trial. He concluded: “While this lawsuit should have been dismissed, it is now scheduled for trial in November. I do not intend to comment on this matter any further. With all of the thousands of people who have given the courses such high marks and accolades, we will win this case!” But he was wrong; months later he didn’t win the case, he settled it, by paying money to the plaintiffs.

An interesting reply to Trump’s long statement appeared in Vox. The writer, Dara Lind, complained that Trump had not apologized “for insinuating Curiel was biased because of his Mexican heritage.” Instead, he was “walking back some of his comments,” while retrenching his attack.

Lind wrote: “It’s possible that Trump actually never meant to say that all Mexican Americans are biased against him, but he’s said it anyway, and now he’s walking it back.” That’s a fascinating sentence because Lind admits that Trump perhaps never meant what she blamed him of saying. But in reality, Trump never even said that “all Mexican Americans are biased against him,” it was just an inference by lumpers like Lind. She admitted: “Trump isn’t saying that having Mexican parents makes you inherently biased.”

Having thus admitted in a few ways that Trump did not literally and intentionally say what he was being accused of, Lind then conjectured that Trump was doing something even “worse.” She invented the claim that “from the beginning” Trump attacked Curiel because of “Curiel’s pride in his ethnicity.” Lind concluded that Trump’s even worse argument was “that people who are proud enough of their heritage to join an organization are biased—not only against Trump but against America itself.”

Like others, in order to make her critique, Lind needed to disregard and not quote statements in which Trump said the opposite of her inferences. For example, he told John Dickerson on CBS that Curiel “is a member of a club or society, very strongly pro-Mexican, which is all fine. But I say he’s got bias.” Like Lind, Dickerson tried to get Trump to say that since Curiel’s parents were Mexicans then all Mexicans might have a problem in voting for Trump. But Trump replied “No, totally different,” because he was going to create more jobs for them. Dickerson tried to get Trump to say that Curiel should recuse himself “because of his Mexican heritage,” but Trump replied: “No, because of other things.” (And on CNN, Jake Tapper tried to get Trump to say that Curiel should recuse himself “Because he’s Latino.” But again, Trump didn’t say that.)

Dara Lind’s critique in Vox illustrates how some writers read between the lines in order to generalize and concoct offensive claims to righteously critique. To make things look even worse, an editor in Vox titled Lind’s article with an invented quotation: “Trump: I’m sorry you thought my racism against Judge Curiel was racist.” However, Lind’s article itself did not even include the words ‘race,’ ‘racism,’ or ‘racist.’

Writers wavered between referring to ethnicity or racism.

One report in the Washington Post wrote that Trump “attacks a judge’s ethnicity,” dismissing Trump’s “ethnicity-based criticism,” his “sustained ethnic attacks on Curiel,” while also writing: “Trump’s racially charged campaign.” It quoted the only African American Republican senator, Tim Scott (South Carolina) who said that Trump’s remarks were “racially toxic.” Still, Senator Scott said that Republicans should not rescind their support of Trump and that he would continue to support him.

The Republican governor of New Jersey, Chris Christie was among the few to defend Trump. He told reporters: “Donald Trump is not racist. The allegations that he is are absolutely contrary to any experience I’ve had with him over the last 14 years.” Christie said that what happened to Trump, regarding Curiel, “happens to anybody in politics who speaks their mind. If you have this many cameras and microphones in front of you . . . and if you’re not a preprogrammed, robotic politician, you’re going to make statements you wish you could take back.”

The same day when Trump posted his statement, he received support from a high-profile source, of Mexican descent. Alberto R. Gonzales, the former U.S. Attorney General (from 2005 until 2007), wrote a commentary published in the Washington Post and the Chicago Tribune titled: “Donald Trump has a right to ask if Judge Gonzalo Curiel is fair.”

Attorney General Gonzales was also a judge and a law professor. He argued that as a “private citizen, Trump has a right to his opinions,” regardless of whether others disagree with him of think that his opinions are foolish or dangerous. Gonzales agreed that Trump’s critics were right that it’s important to uphold the independence of the judiciary branch of government. But Gonzales wrote that another value is also equally or more important: namely a person’s right to a fair trial.

Gonzales noted that judges are required not only to be impartial but to avoid the “appearance of impropriety,” that is, to litigants such as Trump. Gonzales did not posit that Curiel was biased, and he criticized the demeaning manner in which Trump had raised the issue. Yet Gonzales noted that the key issue was whether there was an “appearance of impropriety.”

Gonzales wrote that Mexican heritage or ethnicity certainly are not grounds alone for posing a conflict of interest. Gonzales himself was born in San Antonio, and like Curiel, his parents were from Mexico; his father was a migrant worker. And three of his Mexican grandparents resided in the U.S. and it’s not even known whether they were what Trump would call “illegal immigrants.”

Gonzales pointed out that Trump had confused Curiel’s membership in the La Raza Lawyers with the National Council of La Raza, an organization that had vigorously condemned candidate Trump. Though the two groups are distinct, Gonzales noted that Trump “may be concerned” that the one group might support the other.

Plus, Gonzales noted that in 2014, when Curiel certified the class-action lawsuit against Trump University, Curiel appointed the Robbins Geller law firm to represent the plaintiffs. That law firm had paid Trump’s rival, Hillary Clinton, $675,000 in speaking fees since 2009.

Gonzales wrote that such circumstances were not conclusive but did raise a legitimate question of whether Trump was going to receive a fair trial. Gonzales ended his article by saying that if Trump was acting from “a sincere motivation to protect his constitutional right to a fair trial” then voters had a right to consider this.

Similarly, the Washington Times reported about a law professor who actually agreed with Trump. Professor Victor Williams taught law at Catholic University in Washington DC. He said that the standard for a conflict of interest is not whether a judge really has bias and personally acknowledges it, the standard is whether there is “an appearance of impropriety.” Williams claimed that Curiel’s membership in La Raza Lawyers Association “absolutely” meets the standard because that association was politically active and supported unauthorized immigrants whereas Trump took a strong stance against them.

As evidence, Williams said that in 2014 Judge Curiel served on a committee that awarded a college scholarship to a student who described himself as “undocumented.” Williams said that Curiel “participated in events where illegal aliens were celebrated, where illegal aliens were promoted with scholarships.” Williams added “On a human basis, I say: God bless. But it is clear that from his association with La Raza Lawyers that he has political and ideological affiliation with illegal immigration proponents,” thus creating the appearance of a conflict of interest.

In defending Trump, both Gonzales and Williams used arguments that Trump himself did not use. Likewise, in criticizing Trump, both Filipovic and Lind used arguments that Trump did not use. Since Filipovic and Lind denounced claims that Trump did not actually make, which is unfair, we might wonder whether Gonzales and Williams likewise should not have conjured points that Trump himself did not use as grounds for his claims. However, Gonzales and William have an advantage. They used valid legal principles and evidence to say that Trump’s concerns were justifiable, that is, for a layperson such as Trump.

In contrast, Filipovic and Lind used speculations to put words in Trump’s mouth, to then denounce him for those very words, which he didn’t actually say. Actually, what Trump had said was bad enough. Yet their critical, literary sense remained unsatisfied, so they cooked up greater offenses, allegedly implied, insinuated, so that they could further condemn Trump.

Nevertheless, the majority of the news media continued to denounce Trump for racism. In Newsweek, Vikram David Amar rightly argued that “discerning racism requires analysis of patterns and practices.”

Amar is a professor of law and Dean of the College of Law of the University of Illinois. Amar nicely spelled out one of the main reasons why pundits concluded that Trump’s attack on Curiel was racist: “I think Trump comes off as thoughtless and racist here because he has said many other things that come off as thoughtless and racist.”

But note that Amar twice wrote “come off.” Because, he could not just write that what Trump actually said was racist. For example, Trump didn’t say that Curiel was a bad judge because people who are not white can’t be impartial.

Like other writers, Amar used the words of guesswork to make his case: “implies,” “suggests,” “suggesting,” “come off looking,” “comes off as,” “doesn’t seem likely,” etc.

Like others, Amar paraphrased Trump’s statements in exaggerated and distorted ways. Amar further claimed that “Trump routinely seems to reserve the most serious accusations” against minorities. Note the words “seems to.” Why not just say that Trump in fact does this?

If we want to say that Trump’s insults toward minorities are worse than his insults toward white men, we should at least do the comparison. But like other writers, Amar did not spend even half a sentence mentioning the scores of rich, powerful white men who Trump had ridiculed, mocked and insulted time and again.

Consider some of Trump’s insults against white men:

Jeb Bush, Governor
“no honor,” “clueless,” “hypocrite,” “by far the weakest,” “Sad!” “really pathetic,” “zero communication skills,” “bottom of the barrel,” “weak and ineffective,” “a total embarrassment,” “ridiculous,” “SO SAD,” “phony,” “a puppet,” “miserable,” “a loser,” “the last thing we need is another Bush,” etc.

President Bill Clinton
“there’s never been anyone more abusive to women in politics,” “the WORST abuser of women in U.S. political history,” “predator,” “hypocrite,” “was called a racist,” “terrible,” “doesn’t know much,” “DEMONSTRATED A PENCHANT FOR SEXISM,” etc.

Glenn Beck, news commentator
“dumb as a rock,” “irrelevant,” “mental basket-case,” “a real nut job,” “always seems to be crying,” etc.

David Brooks, New York Times columnist
“a clown,” “dummy,” “one of the dumbest of all pundits,” etc.

Bill de Blasio, New York Mayor
“the worst Mayor in the history of NYC,” “the worst mayor in the United States,” “inept,” “disgrace,” etc.

Bob Corker, U.S. Senator
“doesn’t have a clue,” “incompetent,” “lightweight,” “set the U.S. way back,” “sad,” “Liddle’ Bob,” “a fool,” “couldn’t get elected dog catcher,” “Strange,” etc.

Lindsey Graham, U.S. Senator
“always looking to start World War III,” “Really sad,” “no honor,” “failed,” “nasty,” “dumb mouthpiece,” “embarrassed himself,” etc.

John McCain, U.S. Senator
“always looking to start World War III,” “sadly weak,” “incapable of doing anything,” “He’s a war hero because he was captured,” “has failed miserably,” “doing a lousy job,” “graduated last in his class,” “dummy,” etc.

Lawrence O’Donnell, MSNBC pundit:
“a fool,” “dopey,” “dopey political pundit,” “one of the dumber people on television,” etc.

Rand Paul, U.S. Senator:
“such a negative force,” “failed,” “a fool,” “lowly,” “didn’t get the right gene,” “lightweight,” “truly weird,” “reminds me of a spoiled brat without a properly functioning brain,” etc.

Rick Perry, Governor:
“did an absolutely horrible job,” “should be ashamed of himself,” “failed,” “should be forced to take an IQ test,” etc.

Mitt Romney, Governor:
“Really sad,” “choked like a dog,” “a mixed up man who doesn’t have a clue,” “failed,” “a total joke,” “a disaster,” “no guts,” “one of the dumbest and worst candidates in the history of Republican politics,” “so awkward and goofy,” etc.
One could easily continue to give hundreds of examples of Trump criticizing and demeaning white men. Yet one never finds such comparisons when Trump criticizes someone who is a member of a minority group. Instead, writers such as Professor Vikram David Amar simply claim that Trump’s insults toward minorities are the worst. Are they? Consider again some of his insults toward Judge Curiel:

Gonzalo Curiel, judge
“hostile,” “hater,” “should be ashamed of himself,” “what Judge Curiel is doing is a total disgrace,” “very biased,” “unfair,” “very unfair,” “Totally biased,” “I have been treated unfairly by this judge,” etc.

As I’ve said, this is all very bad, but let’s compare it to some of the things that Trump said against the prominent white men listed above:

“by far the weakest,” “really pathetic,” “zero communication skills,” “bottom of the barrel,” “incompetent,” “irrelevant,” “one of the dumbest and worst,” “lowly,” “abusive to women,” “dumb as a rock,” “should be forced to take an IQ test,” “didn’t get the right gene,” “without a properly functioning brain,” etc.

It’s easy to imagine that if Trump had used even a few of the latter insults against Curiel, news commentators would have denounced Trump even louder than they did. But if so, is it true that Trump’s worst insults were aimed at minorities? Moreover, the selection above combines insults that Trump gave to some white men, but it’s easy to find lists of his insults for individual white men that were far worse than what he said about Gonzalo Curiel. For instance, consider a few of Trump’s insults against the Republican strategist Karl Rove:

Karl Rove, former Deputy White House Chief of Staff
“failed,” “Never says anything good & never will,” “shouldn’t be on the air,” “should be fired,” “sick,” “a loser,” “so biased,” “unfair,” “dummy,” “no credibility,” “dopey,” “shouldn’t be allowed to do bias commentary,” “has ZERO credibility,” “establishment dope,” “total fool,” “moron,” “biased dope,” “total loser,” “a clown with zero credibility,” “irrelevant clown,” etc.

Imagine if Trump had said all that about Judge Curiel. If Trump had said some of those things about Curiel (the ones he didn’t say), pundits would have said that the comments were intrinsically racist. But instead, since Trump said them about an old white man they could be heard with an indifferent shrug; many liberal listeners would even agree with Trump.

By not mentioning the many white men who Trump regularly berated—far more than Curiel—it was easier for one-sided writers to make their case that Trump attacked Curiel only because he was Mexican American, and because Trump was a racist — and not, for example, because Curiel had issued negative rulings against Trump.

Since Trump often claimed that he’s not racist at all, “I’m probably the least racist person that you know” (though I entirely disagree), I imagine that, over the years, Trump felt that his self-proclaimed lack of racism, coupled with his frequent criticism of individual white men, entitled him to, once in a while, say negative things also about individuals who are not white. Who knows, maybe Trump envisioned himself as an equal-opportunity insulter?

 

Alberto A. Martinez is a professor of History at the University of Texas at Austin.

Next, Chapter 23:  “When you’re a star they let you do it.”

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