Contempt of Court

These are not frivolous arguments, given the last several decades of Supreme Court decisions—not to mention the decade to come, in which the justices will decide cases involving abortion, transgender rights, and religious freedom, to name just a few. But they do require faith that Trump actually respects both the federal judiciary and his advisers enough to heed the counsel of dedicated conservative lawyers and the conservative movement in general.

And that faith is all the harder to maintain in the aftermath of Trump’s extended barrage of attacks on Gonzalo P. Curiel, the unlucky federal judge who found himself assigned to the case of Makaeff v. Trump University, LLC. Trump’s widely reported attacks are doubly disconcerting. First, Trump’s obsession with Judge Curiel’s Mexican ethnicity reflects the prejudiced mindset that conservatives have strongly and repeatedly rejected, especially in the context of judicial decision-making. And second, even setting aside the “Mexican” issue, Trump’s sheer hostility toward this federal judge portends a presidency with profoundly low regard for the federal courts’ proper role in our government.

The Trump University litigation began in 2010, when Tarla Makaeff filed a class-action complaint alleging that Trump violated a variety of consumer protection laws. Two years earlier, Makaeff had attended an initial Trump U. seminar, where she received a personalized letter “From the Office of Donald J. Trump.” It read, in part: “My father was my mentor and he taught me a lot. Now I want to teach you how to make money in real estate. To be my apprentice you need to Think BIG and really want to succeed. More than anything, you need to take action.”

Makaeff took action—she paid roughly $35,000 for the “Trump Gold Elite Program.” So did others. “Almost from its inception,” a federal court of appeals later wrote, “Trump University drew public comment.” And not in a good way: By 2007, “disappointed customers had begun posting complaints about Trump University on Internet message boards. Some posts alleged that Trump University programs were ‘scams’ that focused on ‘upselling’ customers to more expensive seminars and workshops.” Eventually, some Trump U. students chose a different course of action—namely class action, suing Trump U. for fraud.

In fighting the lawsuit, Trump often points to the fact that Ms. Makaeff once offered a glowing testimonial. Then again, as the court of appeals observed in ruling against him three years ago, the “gist of Makaeff’s complaint about Trump University is that it constitutes an elaborate scam. As the recent Ponzi-scheme scandals involving one-time financial luminaries like Bernard Madoff and Allen Stanford demonstrate, victims of con artists often sing the praises of their victimizers until the moment they realize they have been fleeced.”

Litigation is no fun, except maybe for the lawyers, and so unsurprisingly Trump has tried very hard to stop the case in its tracks. He filed a defamation counterclaim against the plaintiffs. (Judge Curiel’s predecessor allowed Trump’s counterclaim to proceed but was reversed by a three-judge appellate panel that included one of the nation’s most prominent libertarian appellate judges.) Trump opposed the case proceeding as a class action. (Judge Curiel ruled for him in part and against him in part.) He moved to dismiss a related class-action case. (Judge Curiel ruled against him.) Later, after the class had been certified, Trump moved to decertify the class. (Judge Curiel ruled partly in his favor and partly against him.) And in February 2015, Trump moved for summary judgment—that is, he asked the court to rule in his favor without proceeding to full discovery and trial.

Judge Curiel granted Trump’s motion in part and denied it in part. In an opinion issued in November 2015, he granted Trump U. summary judgment against the plaintiffs’ claims for “injunctive” relief (that is, relief that would prohibit or limit Trump University’s ongoing operations). But he rejected Trump’s arguments that the lawsuit could not proceed against him personally because he did not himself engage in the “core” misrepresentations alleged by the plaintiffs. To be clear, the judge did not rule that the plaintiffs had proved their case against Trump; rather, he ruled merely that the plaintiffs’ claims presented genuine factual disputes between the parties, and thus summary judgment against them would be inappropriate.

Needless to say, the November 2015 ruling against Trump was of less than ideal timing for the purposes of his presidential campaign. On December 10, five days before the fifth Republican presidential debate, Trump sat in a room on the 16th floor of Trump Tower, to answer opposing counsel’s questions. On January 21, 2016, less than two weeks before the Iowa caucuses, he sat in Room 6104 of the Trump International Hotel Las Vegas and answered more questions.

Given a choice, no rational person would choose to sit in a conference room and answer lawyers’ tedious questions all day. Trump once tweeted that “John Oliver had his people call to ask me to be on his very boring and low rated show. I said ‘NO THANKS’ Waste of time & energy!” Trump surely would have preferred to give the same answer to opposing counsel’s invitation. Unfortunately for him, Judge Curiel’s decisions made these depositions, and the ongoing litigation, a mandatory performance. Not nice! Sad!

Donald Trump isn’t the first defendant to find himself stuck in a costly, burdensome, frustrating, distracting lawsuit. Bill Clinton went all the way to the Supreme Court to prevent Paula Jones from litigating her civil lawsuit during his presidency—and he lost. Nor is Trump the first defendant to get mad about it: Years after the Supreme Court unanimously allowed the Jones lawsuit to proceed, Clinton complained to author Ken Gormley that some of the justices ruled against him “on politics,” while the rest of the justices were simply “naïve.”

But Trump’s response went astonishingly further. Denouncing Judge Curiel’s unexceptional decisions, Trump has asserted repeatedly that those decisions are the work of a “Mexican” judge relentlessly biased against the man who promises to build a wall on the U.S.-Mexico border.

At a campaign stop in San Diego on May 27, Trump swerved wildly from policy to an unprompted litany of complaints and accusations against Judge Curiel (which C-SPAN recorded and law professor Josh Blackman helpfully transcribed on his popular blog):

Trump closed by calling for an investigation into Judge Curiel: “the judges in this court system, federal court, they ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace.”

Days later, to the Wall Street Journal, Trump argued that Judge Curiel has “an absolute conflict” of interest in hearing the lawsuit, because he is “of Mexican heritage” and a member of a San Diego Latino bar association, while Trump proposes to build a wall on the Mexican border. “I’m building a wall,” Trump said. “It’s an inherent conflict of interest.” To the New York Times he was even more blunt: “I’m building the wall, I’m building the wall,” he said. “I have a Mexican judge. He’s of Mexican heritage. He should have recused himself, not only for that, for other things.”

As these comments were met with astonished, negative responses, Trump doubled down with CNN’s Jake Tapper. “You said that you thought it was a conflict of interest that he was the judge because he’s of Mexican heritage, even though he’s from Indiana,” Tapper said.

“Okay. Yes. Yes,” Trump replied. He tried to change the subject to Hillary’s emails before eventually engaging Tapper’s questions with a series of rambling comments. “Jake, I’m building a wall, okay? I’m building a wall. I am trying to keep business out of Mexico. .  .  . He’s of Mexican heritage. And he’s very proud of it, as I am of where I come from, my parents.” Eventually, Trump concluded, “This judge is giving us unfair rulings. Now I saw why. Well, I want to—I’m building a wall, okay?”

He didn’t stop there—though his staff may have preferred otherwise. In a conference call on June 6, Trump urged supporters to attack Judge Curiel. When Arizona governor Jan Brewer, a Trump campaign surrogate, noted that Trump’s staff had told them to back off of this subject, he blurted, “Take that order and throw it the hell out. .  .  . Are there any other stupid letters that were sent to you folks?”

The next day, Trump issued a press release complaining that his attacks on Judge Curiel had been “misconstrued,” but he reiterated his charges against Curiel’s bias.

Taken together, it was an astonishing attack on a “Mexican” judge who hails, actually, from Indiana. Born in East Chicago, Indiana, Curiel is the son of Mexican immigrants (his father arrived in Arizona in the 1920s) who eventually became citizens, as the New York Times reported. He graduated from Indiana University law school and practiced law in Indiana and California before becoming a federal prosecutor in Southern California.

As head of the U.S. Attorney’s Narcotics Enforcement Division for the Southern District of California, Curiel helped to pursue a Mexican drug cartel “that controlled a torrent of narcotics coming into the Western United States.” One prisoner was caught on tape saying that cartel leaders had given him a green light to assassinate Judge Curiel, which caused the U.S. government to place Curiel under protection.

After an appointment to the California bench by Governor Arnold Schwarzenegger, he was appointed to the federal district court in San Diego by President Obama in 2012. Trump’s attacks already are inspiring a mob reaction. According to the Times, angry Trump fans have been calling Judge Curiel’s chambers.

There is a name for this type of incident, familiar to all conservative lawyers. This is a “high-tech lynching.”

It is enough to note that Trump’s ethnic conspiracy theory is as baseless as it is abhorrent. Trump offers not a shred of actual evidence casting doubt on Curiel’s impartiality; instead, he simply asserts that Curiel is “Mexican” and that Trump wants to build a wall against Mexicans. Q.E.D. And Trump notes that Curiel is a member of a San Diego Latino bar association, the “San Diego La Raza Lawyers Association,” an ominous sounding organization until one reads the SDLRLA’s statement that it is merely “a local diversity bar association” that “is not affiliated” with the infamous National Council of La Raza.

Yet Trump’s obsession with Judge Curiel’s Mexican ethnicity highlights just how much his instincts differ from those of the conservative legal movement, for it reflects precisely the sort of prejudiced thinking that conservative lawyers have repeatedly criticized in debates surrounding the Supreme Court. Time and again in recent decades, progressives have asserted that a judge’s mindset is—or should be—tied directly to his racial or ethnic background.

The most famous example came just seven years ago, during the nomination of Justice Sonia Sotomayor. During the run-up to her nomination, the New York Times and others reported her 2001 speech in which she suggested that her ethnicity inherently improves her judicial quality: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Conservatives stressed that such thinking—much like President Obama’s stated preference to appoint judges who would show greater “empathy” to particular litigants and causes—utterly misapprehended a judge’s duty to apply the law as written, without favor.

In Sotomayor’s case, when progressives tied ethnicity to judicial mindset, they meant it as a compliment. But there is a dark side to such presumptions about race and ethnicity, too, when the left attacks judges or judicial nominees whose views do not accord with what the left assumes to be the “right” mindset for such racial or ethnic groups.

Those were the prejudices that Clarence Thomas denounced during his confirmation hearing, where he felt that the tidal wave of animus directed toward him owed not just to his views, but to the fact that his views defied the stereotype of how black judges ought to think:

Two decades later, conservative lawyer Miguel Estrada faced a similar attack when he was nominated to the D.C. circuit. According to a 2001 memorandum prepared by Democratic staff on the Senate Judiciary Committee, liberal groups singled Estrada out “as especially dangerous, because .  .  . he is Latino.” Other critics on the left were blunter. Rep. Nydia Velázquez complained to the Nation that “Estrada has no understanding of the needs and aspirations of the Latino community. He has no history of effort in trying to help other Hispanics.” Similarly, Rep. José Serrano declared that Estrada “seemed lost, like he had never been involved in any struggle to better the lives of Hispanics. He had no comprehension of Latino history and suffering.”

Again, as different as the left’s embrace of Sotomayor’s “wise Latina” remarks may seem from the left’s castigation of Thomas and Estrada (and others, including Janice Rogers Brown), they were simply two sides of the same coin. In both contexts, progressives had a fixed view of how black and Latino judges think, or at least how they should think. Conservatives rejected such characterizations, arguing that no judge’s views should be simply presumed from his racial or ethnic background, and that in any event any such influences are irrelevant to the work of a judge. Yet today Trump embraces the left’s prejudices, assuming that a “Mexican” judge is inherently incapable of neutrally deciding a case that only remotely if at all implicates Mexican interests.

But even setting aside the profoundly bigoted substance of Trump’s remarks, the mere form of his attacks should give legal conservatives pause, because they highlight the low regard in which Trump evidently holds courts in general. While, again, one might forgive Trump’s frustration in enduring a civil lawsuit, his relentless efforts to threaten and denounce the judge even while the case is pending demonstrates that Trump sees judges as but one more set of opponents to be defeated, by any means necessary.

Here, Trump mirrors no one more than President Obama, who has not hesitated to attack the Court when it suited his political interests. In the Obamacare litigation, President Obama and progressive commentators repeatedly mounted a loud public campaign against Chief Justice John Roberts, in the hopes of persuading him not to rule for the parties challenging Obama’s signature legislative achievement. Whether or not this did in fact affect Roberts’s eventual judgments, conservatives denounced what they saw as an effort to bully judges into obeisance. Would President Trump do anything less, if he feared that the Supreme Court might rule against one of his own legislative or regulatory programs? Would conservatives denounce it?

Similarly, conservatives rightly objected when President Obama used the State of the Union address as an opportunity to blast the justices seated silently before him. He denounced them for failing to rule in his favor in the Citizens United case, even while mischaracterizing what the Court had actually decided. Would President Trump hesitate to demagogue the Court in similar circumstances, much as he demagogues Judge Curiel’s mundane rulings against him? And if so, would Republicans object?

If Trump is elected president, conservatives will hope that he shows a decent respect for the federal judiciary, appointing good men and women to vindicate the rule of law. And conservative lawyers will work very, very hard to make this happen. Perhaps conservatives can align political incentives to force Trump to keep his promise to appoint good judges. But Trump’s over-the-top war on Judge Curiel inspires all the more doubt that Trump will take the federal courts seriously as a co-equal branch of government, or that he will prioritize the appointment of judges who place the rule of law above, say, personal or political loyalty.

Some might respond that even if President Trump treats the federal judiciary no better than Defendant Trump treats Judge Curiel, it is a price that must be paid to save the Supreme Court from decades of ruin. This is not a frivolous argument. One particularly thoughtful conservative legal scholar, John O. McGinnis, wrote at the Liberty Fund’s Library of Law & Liberty that we “can hardly be confident that his appointments will make America great, but we can be pretty confident that Hillary Clinton’s will end the current project of making the Supreme Court a court of law rather than a dynamo of Progressive politics.” Thus, “even if there were only a substantial possibility that Trump will appoint justices in the mold of Scalia and Thomas or even Roberts, that chance differentiates him from Hillary Clinton.”

McGinnis takes care to concede that there “are many reasons for classical liberals to oppose Donald Trump in the general election,” setting aside the Supreme Court. But to many conservatives—maybe even most conservatives—the power to appoint Supreme Court justices and lower court judges is the single most important issue of this election.

In his post-presidential memoir, President Reagan reflected on the immense responsibility that presidents bear in appointing judges. “Even though you couldn’t always be certain how the judges you appointed would act once they put on black robes, I intended to do my best to choose the most responsible and politically neutral jurists I could find,” he wrote. He directed his attorney general and White House counsel accordingly: “The only litmus test I wanted, I said, was the assurance of a judge’s honesty and judicial integrity.”

Trump clearly does not take the judiciary so seriously. Will conservatives ultimately succeed in convincing President Trump to do the right thing, in spite of himself?

Adam J. White is a research fellow at the Hoover Institution.