The people of the United States are increasingly diverse in our religious, ethnic and racial backgrounds. While we still struggle with discrimination, we have learned to live respecting one another.
This respect has taken many decades to achieve, yet it can be fragile, particularly when political leaders challenge it. Our common progress has been jarred by Donald Trump’s demeaning of U.S. District Judge Gonzalo Curiel based on his ethnicity. Trump has responded to disappointment in the courtroom with bitter vitriol on the campaign trail: He says his plan to build a wall on the U.S.-Mexico border poses an inherent conflict of interest for the judge. Trump branded Curiel a “hater” and “very hostile” and noted that he was “Mexican.” And he called Curiel to recuse himself from an ongoing class-action lawsuit over Trump’s failed Trump University, after the judge issued several rulings against Trump in the litigation. (On Tuesday, Trump said his remarks were “misconstrued,” though he did not apologize.)
A U.S. citizen, Curiel was born in Indiana to Mexican immigrants and has enjoyed a distinguished career, as an attorney in private practice and as assistant U.S. attorney to the Southern District of California. Former California governor Arnold Schwarzenegger, a Republican, appointed him as a Superior Court judge. When President Obama appointed him to the federal bench, he was described as “a nominee with impressive — indeed extraordinary — records of experience and public service.” The Senate confirmed him in 2012 on a bipartisan vote. He is one of more than 100 Hispanic federal judges.
Trump’s rhetoric is a frontal attack on the judicial system. Are federal judges of Hispanic origin to be judged on the basis of their ethnicity rather than the quality of their professionalism?
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I have had the opportunity these last 53 years of my life to be a lawyer who practiced before judges, as well as a judge — a California state appellate and Supreme Court justice. (I was proud to be the first Latino appointed to the state’s highest court, in 1976.) When appellate judges disagree, they write dissents. Dissents are based on differing views of the law. Never has a dissent been based on the ethnicity of disagreeing justices, nor should it be so. Were that true, as Trump asserts, our judicial system would, in effect, be destroyed.
Americans of all religions, races and ethnicities come before judges. We are all entitled to be judged fairly and individually. It is my view that the judiciary is best served if the judges come from distinct religious as well as from different racial and ethnic backgrounds. Those judges, sworn to uphold the law, will better reflect who we are as Americans.
What Trump is doing poisons the social compact and the democracy we as Americans share. It is a social compact of respect for one another irrespective of race or ethnicity. We Americans have struggled long and hard to build that social compact. I am an octogenarian who has seen that progress.
More than 80 years ago, as a 1-year-old boy in the 1930s, I was “repatriated” with my family to Mexico from whence my parents had immigrated. A majority of those “repatriated” had never been to Mexico and were, like my brothers and me, American citizens. The “repatriation” during the Great Depression resulted from a wave of prejudice against Mexicans. Later, as a grammar school student, I was sent to a segregated public school for a number of years, a “Mexican school.” Such segregation, extensive at that time, has since been declared unconstitutional. To create a social compact of respect takes decades. In turn, it makes for a more vigorous democracy.
Our judicial system helps that democracy survive. Attacks on judges like Trump’s against Curiel — without foundation and based on ethnicity — threaten our entire system. Trump’s view that there is an inherent conflict when the judge is of one ethnic background and the litigant of another destroys the essence of our judicial system. That Trump has suggested, more recently, that American judges who are Muslims are also inherently conflicted emphasizes the danger. Indeed, it suggests that those of an ethnicity other than Trump’s should not sit as judges. Does Trump think that I, as an American citizen with Mexican immigrant parents, should not have served as a justice?
Cruz Reynoso, the first Latino appointed to the California Supreme Court, is professor emeritus at University of California at Davis Law School. He has also served as vice chairman of the U.S. Commission on Civil Rights.