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

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.

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?
REUTERS/Brian Snyder

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.

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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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