The Dean of a Law School, For Crying Out LoudPosted: June 8, 2016
For several days a cringing nation has been trying to avert its gaze from the rank bigotry of Donald Trump’s insane “he’s a Mexican” tantrum regrading the federal judge, Gonzalo Curiel, who is presiding over the class action case of The People v. Donald Trump’s Real Estate Get-Rich-Quick Hotel Ballroom Scamversity. Trump’s claim that the Indiana-born judge’s Mexican heritage makes him unfit to preside over the case has been met with widespread alarm from legal experts, and it’s been a parlor game these last few days watching prominent Republicans twist themselves into knots expressing their versions of measured disapproval while refusing to admit that the thing of which they disapprove is an expression of unvarnished racism, pure and simple.
To be fair, we expect Republican pols, having committed to partisanship over better judgment, to look for ways to rationalize Trump’s latest rhetorical outrage. But what we don’t expect is someone who should know better — who for crying out loud is the dean of a university law school — to come to Trump’s racialist defense. But that’s what we have in Belmont University’s College of Law dean Alberto Gonzales, who penned a jaw-dropping Trump apologia at The Washington Post over the weekend.
Gonzales did allow that “Curiel’s Mexican heritage alone would not be enough to raise a question of bias.” But he then goes on to promulgate the kind of guilt-by-association nonsense that is Trump’s stock in trade. Gonzales writes:
Curiel is, reportedly, a member of a group called La Raza Lawyers of San Diego. Trump’s aides, meanwhile, have indicated that they believe Curiel is a member of the National Council of La Raza, a vocal advocacy organization that has vigorously condemned Trump and his views on immigration. The two groups are unaffiliated, and Curiel is not a member of NCLR. But Trump may be concerned that the lawyers’ association or its members represent or support the other advocacy organization.
“Unaffiliated”! Curiel “not a member”! Good lord. How deeply is Alberto Gonzales embarrassing himself (and his university) with this?
First of all, as constitutional law specialist Garrett Epps explains in The Atlantic, it is settled federal law going back decades that you can’t challenge the impartiality of a judge on the basis of ethnicity. When lawyers tried to do that in a 1998 case in which litigants were fussed about a judge’s Asian heritage, in a (failed) appeal the chief judge of the Second Circuit Court of Appeals (a Reagan appointee) wrote:
Appointment by a particular administration and membership in a particular racial or ethnic group are in combination not grounds for questioning a judge’s impartiality. Zero plus zero is zero.
Gonzales’s argument is drawing rebuke not just from fuzzy-headed liberal do-gooders like me, but from serious legal types. George Mason University law professor Ilya Somin, a well known conservative legal scholar, writes:
Gonzales’ overblown insinuations of political bias are not as morally egregious as Trump’s claims that Judge Curial has a conflict of interest based on his ethnicity alone. But it is an extremely weak argument nonetheless.
Case Western law professor Cassandra Burke Robertson adds:
Taken to its logical conclusion, Gonzales’ position would allow unfounded speculation about a judge’s political leanings to give rise to a “legitimate question” about his or her “honesty, integrity, impartiality, temperament, or fitness to serve as a judge.” This is not only wrong as a matter of judicial ethics, but it undermines the very legal system Gonzales has spent his entire career serving.
Perhaps we’ve grown all too accustomed to the likes of a nasty race-baiting attack on a federal judge from an ignoramus like Trump. Surely, though, the dean of a law school, and a former U.S. attorney general, should know better than to legitimize it.
A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.