All this fuss about Donald Trump being racist because he said he thought a Federal judge was biased against him is total nonsense. How sick, and uncertain, we must be as a nation to react in this hotheaded way over his quite unremarkable observation about a judge’s heritage.
What Trump said made perfectly good sense—that the judge was probably biased because he was a second-generation Latino and Trump had impugned Latinos once—and was not a special case of racism but one more in a long-standing criticism of bias in the judiciary. It cannot be honestly held that justice is blind, certainly not all juries, not all judges. Justice, in the end, may be reasonably done most of the time, but never without judgments by all parties, some of which will be seen as inadequate, or unfair, or prejudiced.
The judiciary is independent, and rightfully so, but that doesn’t mean it still can’t be biased. We know there are liberal judges on the Supreme Court and conservative ones, and no one has a difficulty in understanding their biased rulings. All courtroom lawyers know the kinds of biases in the judges they appear before, and they know if they’ve got a “hanging judge” or not.
And there are certain judges who have been appointed to the Court exactly because of their ethnicity. No one doubted that Thurgood Marshall, who had been the NAACP’s chief counsel, would represent the interests of black citizens, not placing those above the law but having them clearly heard. Not only was Sonia Sotomayor chosen because she was a Latina, she admitted as much, even bragging that she thought she would bring to the bench the experience of being a “wise Latina woman.” No one might accuse her of bias, but it certainly could be expected that she would naturally be sympathetic to Latino causes.
And so with this judge. Trump knows it would not be surprising if a judge of Latino heritage, and who is part of the La Raza Lawyers Association, a pro-Latino group started to promote the cause of Latino lawyers, did not like a man who wants to build a wall keeping Mexicans, like the judge’s parents, out of the country. (Never mind that building a wall was already mandated by the Secure Fence Act passed by Congress in 2006.) And might be biased against a man who once said of Mexicans that “they’re bringing drugs, they’re bringing crime,” although he added that “some are good people.”
To raise this issue now is not racism, even if it is race-using. It doesn’t argue that all Latino judges are biased or that this judge is biased against all sandy-haired white men. It is rather Trump’s way of criticizing, getting back at, a judge who in May chose to release the accusations of the plaintiffs in the Trump University lawsuit before the trial began, clearly making a public case against him without giving Trump a chance to reply since the case won’t be heard until November. That certainly might look like bias.
And why should criticism of judges be considered racist? It is a tradition that goes back to Jefferson, to Jackson, to Lincoln (who threatened to jail a Chief Justice he didn’t like). No Supreme Court decision is ever without critics, not even Brown v. Board, say, which was denounced in many quarters as an unlawful arrogation of powers. The Warren Court was regularly denounced by some conservatives, and the Rehnquist Court by liberals.
This is a difficult time in America, when race has come to the forefront in many different ways and brought forth the unpleasant realization that we didn’t end racism with the election of a black President and that indeed there are many segments of our society, both white and black, where racism operates all the time, subtly if not overtly. It might seem inevitable that in these conditions people will be oversensitive and overreact, just to try to deny this truth.
But it does no service to either justice or racial harmony to make a reasonable criticism into an ugly smear. As a nation, we have to be more reasoned.