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What should we think about Donald Trump’s thoughts about judges?

REUTERS/Brian Snyder
Hyperbole is part of politics. Since Trump excels at hyperbole, should we just accept he wins this year’s contest for unfair attacks on the judiciary?

We have seen this sort of attack before, and we no doubt will see it again. Donald Trump attacked Judge Gonzalo Curiel, the judge presiding over the Trump University litigation, stating that because the judge is “Mexican,” he was biased because Trump advocates building a wall between the United States and Mexico. Trump added fuel to the political fire by then stating a Muslim judge might also be unfair to him. Our nation has a long history of political figures brutally attacking judges. Politicians often take advantage of controversial decisions for political gain. But perhaps this one is different.

Judge Kevin S. Burke

Crosses were burned on the lawns of the homes of federal judges after Brown v. Board of Education. The nation was dotted with “Impeach Earl Warren” billboards. Gov. George C. Wallace of Alabama was a law-school classmate of Judge Frank Johnson and was a frequent guest in Johnson’s home. But when Johnson declared that Brown v. Board of Education applied not just to schools, but to all areas of public life, Wallace described Johnson as a “low-down, carpetbaggin’, scalawaggin’, race-mixin’ liar.” 

In 1996, when Federal Judge Harold Baer, Jr. granted a motion to suppress evidence in a drug case, President Bill Clinton, who had appointed him, suggested that resignation might be appropriate if the judge did not reverse the ruling. The Republican presidential candidate, Sen. Bob Dole, called for impeachment of Judge Baer.

Romney and Gingrich

In 2007, Republican presidential candidate Mitt Romney called for one of his own appointees, Massachusetts Judge Kathe M. Tuttman, to resign after a person she released on bail allegedly murdered two people. Romney’s spokesman, Eric Ferhrnstrom, issued a statement challenging Judge Tuttman to explain her decision. “Only she can explain why she released Daniel Tavares [the suspect in the killing] without bail,” he said.

In 2012, the presidential candidate who distinguished himself the most as a vocal critic of judges was Newt Gingrich, who said that he “would instruct the national security officials in a Gingrich administration to ignore the recent decisions of the Supreme Court on national security matters.”  Gingrich’s vision for the federal courts was, “Congress has the power to limit the appeals, as I mentioned earlier. Congress can cut budgets. Congress can say: ‘All right, in the future, the 9th Circuit can meet, but it will have no clerks. By the way, we aren’t going to pay the electric bill for two years. And since you seem to be — since you seem to be rendering justice in the dark, you don’t seem to need your law library, either.’ ” Gingrich attacked a Texas federal district court judge for issuing an opinion on a school-prayer case in June that he described as a ruling so anti-religious, so bigoted, and so dictatorial that the judge should be subpoenaed to testify before Congress to justify his behavior.

Leading Republicans have denounced Trump’s attacks on Judge Curiel, with House Speaker Paul Ryan calling his comments the “textbook definition of a racist comment.” Ryan nevertheless stood by his endorsement of Trump. But not all Republicans criticized Trump. Sen. Charles Grassley, who is the chairman of the Senate Judiciary Committee, argued that Trump’s comments about Judge Curiel were no worse than when Justice Sonia Sotomayor said, “A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male.” Grassley said, “I don’t hear any criticism of that sort of comment by a justice of the Supreme Court.”

Not public policy this time

Donald Trump’s attack differed from others in history. His complaint was not about an issue of public policy; rather, he complained bitterly about how Judge Curiel is presiding over a lawsuit against him personally. Before sitting on the bench, Judge Curiel served for 13 years as a federal prosecutor, rising to chief of narcotics enforcement. He was appointed to the state court bench by a Republican governor and to the federal court by President Barack Obama. In a secretly taped conversation, a man accused of being a gunman for a Mexican drug cartel said that he had received permission from his superiors to have Curiel assassinated. As a result of that, Judge Curiel was forced to live under around-the-clock guard for nearly a year. The U.S. Marshal Service moved Judge Curiel to a military base and eventually to the Justice Department in Washington, D.C. Curiel was an aggressive prosecutor who once defended witness testimony that had most likely been obtained through torture by the Mexican police. “The government is not here to deny there is a possibility of torture,” then Prosecutor Curiel told the judge. “But the forum for those allegations to be aired is the government of Mexico.” Donald Trump wants to reintroduce waterboarding and one could argue that then-prosecutor Curiel might have agreed with that approach.

Hyperbole is part of politics. Since Trump excels at hyperbole, should we just accept he wins this year’s contest for unfair attacks on the judiciary? Starting this past February, Trump has said that Judge Curiel is a “hater” of him, “biased” against him, and has an “inherent conflict of interest” because of Curiel’s Mexican heritage. Despite all of his comments, Trump recently issued a statement claiming he was “misunderstood” and vowed not to talk about Judge Curiel anymore.

There are a lot of political figures who want this issue to go away. Why not just move on? Racial bigotry makes a difference and, although the likelihood is history will forget this attack just like that of other political figures, the imperative is to continue the discussion. Values make a difference. Our nation’s courts are good, but they have the opportunity to become great, and the times we live in require greatness. What is needed is healthy debate followed by real reform.

Intimidation and democracy

It is, at times, easy for judges to become overly defensive about the judicial system. Judges are public figures and need to accept that unfair criticism is part of the job. Yet intimidation of judges has a price for democracy. For example, Federal Judge H. Lee Sarokin simply quit the bench. He cited the increasing injection of politics into the judicial process as his principal reason for leaving the bench. But the reason not to let go of this discussion is not to protect sensitive judges.

The reason we cannot just “forget” what Trump said about Judge Curiel, or let political leaders simply get by with a denunciation of his remarks, is we have real problems in our courts. The public increasingly sees judges through the prism of partisan eyes. 75% of people who were asked if judges make decisions based upon their own personal or political views answered yes to a moderate or significant extent. Our Supreme Court has the lowest public opinion since surveys on it began. The partisan gridlock on the appointment process could not get worse.

Reform is the imperative. It is not just Donald Trump’s values that need to be questioned, but all of our values. Do we truly want a fair and effective court system? There is a need for “balance” and due deference between judges and lawmakers; there is a need for judicial appointments of merit and diversity; there is a need for appropriate staff and resources for courts so they are not overly dependent on the executive who is often a party before the courts; there is a need for greater access to justice for non-elites or poorer and self-represented litigants; and there is a need for greater efforts to ensure that justice fairly deals with racial, ethnic and gender bias. These issues are real and they need to be focused upon not just by presidential candidates, but by all of us.

Kevin S. Burke is a trial judge on the Hennepin County District Court and past president of the American Judges Association

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Comments (11)

  1. Submitted by Hiram Foster on 06/15/2016 - 08:15 am.

    Bias

    Apart from his seeming lack of understanding of some of the most basic concepts of civil procedure, surprising in someone who has dedicated a good part of his life to litgiousness. what Donald seems unable to grasp that the fact that a judge ruling against his motion, isn’t in itself evidence of bias. Sometimes the law just isn’t on his side, especially with respect to pro forma pretrial motions.. Most people understand that but occasionally narcissists do not.

  2. Submitted by Dennis Tester on 06/15/2016 - 09:34 am.

    Gingrich’s view on federal judges

    Note the audience reaction.

    https://www.youtube.com/watch?v=pLQebqVQKcc

    Heh.

  3. Submitted by Neal Rovick on 06/15/2016 - 11:28 am.

    A part of “drowning the government in a bathtub” is the diminishment of an independent judiciary. Trump, like in so many other areas, is much more explicit than the dog-whistling performed over the past decades by the Republicans.

    Nothing is more angering than having obstacles to your own personal goals, especially when they represent the restraint of law and order in the consideration of the greater societal good–so government in all forms must be diminished..

    At the heart of the matter is the failure to recognize the fact that the highest achievements of modern society is the moderation provided by a government of laws and regulations enacted in striving for the greater good.

  4. Submitted by Connie Sullivan on 06/15/2016 - 12:19 pm.

    Because I had read a bit about the allegations against Trump University, when Donald Trump made his condemnable remarks about Judge Curiel I chalked them up to Trump’s attempt to cast what would be his probable loss in this civil case as something other than Trump University’s fraud against consumers. Self-protection, before the fact of a loss. Said by a guy who doesn’t always convince people he knows what the rule of law is.

    Trump can’t stand to “be a loser.” And the fraud his “University” committed is pretty clear to a lot of people who follow issues involving the way some con men trick gullible consumers. His remarks do follow in a sad lineage of “blame the judge” rhetoric, but it’s important to remember that there hasn’t bee any ruling yet on the fraud issue–this is way before the fact of some historic judicial ruling.

    • Submitted by Dennis Tester on 06/15/2016 - 03:35 pm.

      But it’s not clear

      that his university committed fraud. And the reason is he has written testimonials and customer letters praising their experience, in numbers rivaling the number of complaints. In fact, the source of his problem with the judge is that the original plaintiff asked to withdraw from the case … effectively changing her mind as to whether she had actually been defrauded, but the judge refused her request!

      Without getting into the minutiae of the case, let’s just say that it’s not “pretty clear” that his company should be found at fault. Trump’s suggestion that the judge is biased is based on the judge’s bizarre reaction to the plaintiff’s request.

      • Submitted by RB Holbrook on 06/15/2016 - 04:43 pm.

        Bizarre Reaction

        “In fact, the source of his problem with the judge is that the original plaintiff asked to withdraw from the case … effectively changing her mind as to whether she had actually been defrauded, but the judge refused her request!”

        No, that is not what happened. The original named plaintiff (the person who is named first in a class-cation suit), Tarla Makaeff, wanted to be dismissed as the name plaintiff the case because, as she put it, Trump & Co. had “put her through the wringer” at a secret deposition, and she was forced to “suffer daily with the fear that she could be bankrupted by Trump.” Her request asked the court to enter measures to protect her from “further retaliation,” citing The Big T’s reputation for vindictive litigation. She did not want out of the suit entirely, but she did want to stop being the public face of the case.

        Does your news source mention that Trump countersued Makaeff, and the case was dismissed? And that he was ordered to pay her $800,000 in legal fees for that fit of pique? How about that Trump’s legal team did not want to let her out of the case?

        He’s a class act, your Donald.

    • Submitted by Steve Titterud on 06/15/2016 - 05:55 pm.

      “…the way some con men trick gullible consumers.”

      NOT TO DEFEND TRUMP, but his company’s manner of sales and marketing actually represents mainstream corporate business ethics, namely:

      – misleading customers about the benefits of a product or service;

      – high pressure sales tactics;

      – encouraging people to spend every dime they can borrow on your product or service, and further, hiding the true costs.

      For examples, and without going into detail, just think back to the Wall Street packaging of junk bonds and creation of investments in packages of over-rated mortgages; the everyday sales and marketing practices of vendors of communication services (cell, cable); the auto manufacturers; the credit card companies; the education industry; and just about every “biz opp” there is.

      They all practice, in some measure or other, the same chicanery on their customer base – it’s everywhere.

      Trump should be castigated for the lack of ethical constraint in his business model’s sales and marketing plan. But let’s not use this as an example of something out of the mainstream – it’s not. Considering his views, though, it’s frightening to think what he might try to do to the little in consumer protections we have now.

  5. Submitted by Hiram Foster on 06/15/2016 - 01:31 pm.

    Indepedent judiciary

    The notion that we have an independent judiciary at he appellate level which had been on life support for a couple of decades has now been pretty much refuted by the senate’s inaction in refusing to take up a presidential nomination for the Supreme Court for political reasons. Going forward, we now understand that those lengthy opinion texts with their decorative footnotes are just rationalizations for the pre existing political opinions of the justices.

    • Submitted by Dennis Tester on 06/16/2016 - 07:51 am.

      Exactly

      You’re either a constitutionalist or you’re not. A free society demands the former.

      • Submitted by Steve Titterud on 06/16/2016 - 10:37 am.

        Some of us wouldn’t regard being subject to the whims

        …of political opinion of a judge appointed FOR his politic opinion is anything we would call by the name of “freedom”.

        Mr. Foster’s comment is regarding prejudice in the judiciary – as opposed to a fresh consideration of each case on its merits – WITHOUT prejudice.

        He sees the judiciary in its appellate role migrating away from the latter, and towards the former. It’s not actually about a theory of law, which you cite in protest. It’s about politics.

  6. Submitted by Connie Sullivan on 06/16/2016 - 02:44 pm.

    Apparently the Republicans who control the U.S. Senate believe that not having federal judges at all is better than having one who’s fair, or of Mexican heritage or even a raving right-winger.

    They have refused to approve any of [almost all of] Obama’s nominations to federal judgeships in the past two years, and the sheer number of judgeswe have is way below what we should have, and have had before the GOP decided that they absolutely would NOT let Obama be President, even though the people re-elected him, with a nice majority, in 2012.

    I have no patience with anything Republicans say anymore about the law, our courts, our judges, when they behave like kindergartners in this way.

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