Trump spent much of the last two weeks under fire for repeatedly claiming that Judge Gonzalo Curiel, the judge hearing a lawsuit alleging that Trump University scammed many of its students, has a conflict of interest because Curiel’s parents immigrated from Mexico and Trump wants to build a wall at the Mexican border. The former reality show host’s attacks on the judge were widely denounced by leading Republicans, including the two highest ranking elected Republicans in the nation. Senate Majority Leader Mitch McConnell (R-KY) called Trump’s comments “outrageous and unacceptable.” Speaker Paul Ryan (R-WI) called them “sort of like the textbook definition of a racist comment.” (Both men, however, still intend to vote for Trump.)
Judiciary Chair Chuck Grassley (R-IA), by contrast, told the Des Moines Register on Wednesday that Trump’s racism is no more troubling than widely reported comments made by Justice Sonia Sotomayor prior to her appointment to the Supreme Court. “I think that you don’t have any more trouble with what Trump said than when Sotomayor said that . . . ‘a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male,'” Grassley claimed.
Sotomayor’s “wise Latina” remark came as part of a lengthy speech she delivered discussing how judges’ life experiences shape their decisions, and how they should balance their unique perspectives with their obligation of fairness to litigants. “I am reminded each day that I render decisions that affect people concretely,” Sotomayor said, “and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”
In this context, she made the comment that Grassley criticizes: “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.” Nevertheless, she added, “I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”
Sotomayor later described her “wise Latina” remark as a “poor choice of words,” noting that “if you read on and read the rest of my speech you wouldn’t be concerned with it.” Altogether, the speech was a nuanced effort to acknowledge the fact that a judge’s identity and experiences shape their world view, and to grapple with how judges can benefit from these experiences while still remaining impartial.
Other justices, including one of the most conservative members of the Supreme Court, have made similar remarks in the past. Justice Samuel Alito, a conservative Italian American, once said that “when I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”
In any event, any similarities between Sotomayor’s (or Alito’s) remarks and Trump’s attacks on Judge Curiel are, at most, superficial. Sotomayor explored how a judge can balance their experiences “with their obligation of fairness to litigants.” Trump, by contrast, suggested that a judge of Mexican descent is inherently incapable of being fair to certain litigants. The burdens described by Sotomayor are carried by all judges, since all judges’ experiences will be shaped in some way by their racial and ethnic background. Trump, by contrast, singled out Mexican American judges as uniquely suspect.
It’s worth noting, moreover, that Grassley’s attempt to downplay Trump’s racism comes as the senator is leading an unprecedented campaign to maximize the impact Trump will have on the judiciary if the GOP candidate defeats Democrat Hillary Clinton. As Judiciary chair, Grassley has refused to even schedule a hearing on President Obama’s nomination of Chief Judge Merrick Garland to fill the vacant seat on the Supreme Court. Thus, by holding that seat open, Grassley is maximizing the chances that an overt racist will get to fill the open seat.
Last month, Trump released a list of 11 judges he would consider nominating to the Supreme Court. All of them are white.
Author: Ian Millhiser