What Trump’s attack on Judge Curiel tells us

What to make of Donald Trump’s attack on Judge Gonzalo Curiel, who is presiding over the Trump U case? Is it a counterintuitive litigation strategy? Is it, as Steve suggests, an attack, witting or not, on the premise of diversity? Is it, as the Washington Post and many others say, new evidence of his unfitness for the presidency?

In my view, it isn’t really any of the above. Rather, Trump is doing what he thinks will help him counter a line of attack his political opponents have raised — that he’s a con man who defrauded those who enrolled in his “university.” He’s also acting in line with his propensity for lashing out at people who do things he doesn’t like.

Let’s try to reason our way through this situation. Litigants have a right to complain about judges. They don’t lose that right when they run for office.

Complaints that because Trump seeks the presidency, his criticism of a judge undermines judicial independence are off base. Even if Trump becomes president, he will have no power to remove or otherwise punish Judge Curiel.

Usually, it’s unwise for a litigant to blast a judge while a case is still pending. But here’s where Trump’s status as a candidate for president becomes relevant.

If you put politics aside, the Trump U litigation can’t seriously injure Trump. In the worst case, he pays an award he can easily afford.

Politically, it’s another matter. The very existence of the litigation is a source of potential injury — it exposes Trump on an ongoing basis to the “con man” charge leveled powerfully by Marco Rubio and sure to be pushed by Hillary Clinton. Thus, political considerations, not litigation strategy, should guide Trump’s statements about this case.

The “con man” charge didn’t work for Rubio. But that doesn’t mean it won’t work better among the different set of voters now in play, who will hear it leveled in new ways, possibly in attack ad after attack.

Trump’s response is that the class case would not have been allowed to proceed had the judge not been biased. It’s the natural politician’s answer — very similar to Team Clinton’s suggestion that the State Department inspector general is biased against her.

Clinton’s complaint lacks plausibility. For one thing, the IG is an Obama appointee.

Trump wants to lend plausibility to his complaint, so he offers a plausible-sounding argument. The judge is of Mexican origin (Trump mistakenly calls him “Mexican”) and therefore doesn’t like Trump due to his position on immigration and his statements about Mexicans.

Anyone who assumes that ethnicity/race, ideology, and politics don’t sometimes enter into a judge’s handling of litigation is naive. I know from experience that litigating a claim of racial discrimination before a conservative white judge is often a different experience from litigating such a claim before a liberal black one.

I also know from the experience of attorneys in one of my former law firms that representing a controversial conservative (and one-time presidential candidate) before a celebrated liberal federal district court judge is no picnic.

Does this mean that Judge Curiel’s rulings in the Trump U case are the product of bias against Trump? No, they may or not be. Does it provide Trump with a potentially effective way of mitigating political damage the Trump U case may inflict? Possibly.

Now let’s return to the questions I posed in the first paragraph. In my view, attacking Judge Curiel is a political, not a litigation, strategy (and also consistent with who Trump is).

As for the second question, Trump isn’t out to make a statement about “diversity” (nor does Steve say he is). Trump’s attack on Curiel does raise questions about the premise of diversity, but it’s not his motive for making the argument or something he’s likely to be conscious of doing. Trump is simply seizing, as he always does (and often brilliantly) on an obvious, but politically incorrect, talking point.

The third question is whether the attack tells us anything new about Trump’s fitness, or lack thereof, for the presidency. I don’t think so. As I suggested in the paragraph above, this is more of the same from Trump. Since he isn’t jeopardizing judicial independence, he hasn’t crossed any line not previously traversed.

If Trump’s attack on Judge Curiel were something new and different, what would it tell us about Trump’s fitness? It would indicate that he’s nasty and not presidential. Ideally, a president should not be so ready to assume (or pretend) that judicial rulings (or other unpleasing forms of expression) are the product of ethnic or ideological bias. A president should have thicker skin and display more respect for those who disagree with him.

But we must also keep in mind that Trump’s opponent will very likely to Hillary Clinton. As noted, her campaign was ready to assume (or pretend) that the State Department’s inspector general (an Obama appointee confirmed by Democrats) is biased against her.

Clinton was also part of the effort to brand as bimbos (and worse) those who complained about her husband’s predatory sexual behavior. She blamed the woes that stemmed from her Whitewater-related corrupt behavior on a “vast right-wing conspiracy.”

Much of Trump’s objectionable behavior and concerning tendencies has been displayed by Hillary Clinton, Barack Obama, or both. You would never suspect this, however, if you relied on the Washington Post and other outlets doing the tut-tutting over the attack on Judge Curiel.

They may occasionally criticize Clinton, but they assume Trump’s flaws are of a different order of magnitude. I doubt that they are.

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