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Trump U vs. the Judge

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Let’s agree that “racism” refers to the belief that one individual is better than another because of his or her racial characteristics where “race” is defined as human types categorized by the possession of genetically inherited physical characteristics which members of each type have in common with other members of that type (e.g., pigmentation, body conformation, stature, bone structure and so forth).

As we understand “race” nowadays we recognize that members of distinct races, to the extent these can be categorized, all share the same DNA material and that variations of their expression are the source of the visible differences that mark the different races, but all are members of the same species: homo sapiens (or human beings). Other species of primates have existed which were much closer genetically and in terms of genetic expression to ourselves than any that now exist today and modern science suggests that members of our species have interbred with some of them in the past, resulting in the presence of Neanderthal genetic material, say, in modern humans. Evolution itself appears to reflect a biological continuum rather than sharp breaks in species so that it is possible for new species to arise from older ones (from human beings, say) if they are sufficiently isolated in sharply different physical environments than their fellows experience and/or through the result of genetic mutations which can flourish in such isolation. So race can conceivably be a step toward speciation though it isn’t the same as species.

The issue of racism is the issue of how human beings in one racial group relate to humans in other racial groups, i.e., are they positive or negative toward them in their interrelations. Do they favor or discriminate in their behavior towards members of other races? Now aside from the fact that modern science suggests that “race” is a somewhat arbitrary and not a core category for dividing humans according to capabilities, there are certainly differences, some of which can matter in meeting the challenges presented by the environments in which individuals find themselves. Consider the pygmies, arguably a distinct if minor race of man, or the South African Bushmen. These racial groups have developed to meet special challenges of their environment and yet continue as part of the human species (that is they can interbreed with other humans and produce viable, fertile offspring).

On the other hand there is evidence on some of the major islands of the South Pacific that there once existed a hobbit like human group which seem, based on the evidence, to have been distinctly different from modern humans, i.e., they seem to have been a separate species, much as the Neanderthal in Europe seems to have been, though DNA evidence suggests that at some point in the history of humanity our ancestors interbred successfully with members of that group (reminding us that evolution doesn’t generally create sharp species distinctions right off but seems to do it only incrementally over significant periods of time).

Now Supreme Court Justice Sonia Soto-Mayor was clearly wrong to have said, as she once did, that a “wise Latina woman” could be expected to do a better job in handing down rulings on the court just because she was Latina.  Setting aside the self-characterization of being “wise”, the idea that being Latina gives anyone a special advantage vis a vis interpreting the law and the Constitution, is simply outlandish. Of course what she most likely meant was that a candidate with those qualifications would bring an extra something to the judicial game, namely the life experiences of someone from an heretofore unrepresented minority and in this you can say she had a point. There IS something to be said for the experiences judges bring with them. We don’t live in a world of perfect judicial automatons. Being human, judges are as prone to perspectives based on their accumulated life experiences as anyone. More, one can never read the law or interpret the Constitution in perfect isolation. Even attempting to adhere as closely as possible to textual originalism cannot wash away the perspectives of the persons we are. So it’s reasonable to say Soto-Mayor’s statement was not racist because it didn’t imply that she was better than others with a different racial background. It only meant that she felt (rightly or wrongly) that she brought an additional advantage with her for judging cases.

So was Donald Trump’s recent characterization of Judge Gonzalo Curiel, who’s presiding over a fraud case concerning Trump University, as prejudiced because of the judge‘s ethnic background, a form of racism? The presumptive Republican presidential nominee maintained that the judge, being Mexican in his parentage, should be presumed to have an “unfair” interest in the case outcome because he, the nominee, is “building a wall, building a wall.” Trump’s proposed wall, should it ever get built would presumably wall off the United States from Mexico, our southern neighbor, something that Donald Trump presumes would tend to offend people of Mexican heritage (disregarding for the moment some of the other incendiary things about Mexicans the presumptive nominee has told crowds during the course of his campaign in the primaries).

First, if there was any reason to think the judge felt he had an ax to grind, and was grinding it, in the Trump case, Trump’s attorneys should, of course, file a motion for him to self-recuse. Unless and until they do so, it’s inappropriate for Trump to make accusations against the judge in the public domain where the judge cannot respond. But second, it’s also inappropriate to make such accusations based solely on the judge’s ancestry (though initially Trump didn’t even make this distinction, arguing that the judge is, in fact, “Mexican” despite his having been born in this country and being an American citizen).

Later Trump introduced the judge’s affiliation with a Latino lawyers’ association in San Diego to buttress his initial allegations of prejudice based on ethnicity. Since the lawyers’ group included “La Raza” in its name, the immediate assumption made by Trump and many of his supporters was that the group to which Judge Curiel belonged was an offshoot (or affiliate) of another organization, the National Council of La Raza, a well known left leaning advocacy group that supports the kinds of policies vis a vis Mexican immigration (legal and illegal) which Trump opposes. But it turns out that there is no affiliation, only inclusion of the leftwing group as part of a list of other Hispanic/Latino community groups, in a section on its webpage providing individuals accessing that page website links to other Latino-oriented groups. In other words the National Council of La Raza is recognized by the San Diego Latino lawyers’ association, of which Judge Curiel is a member, as part of the same Latino community which the lawyers’ group is a part of. That’s not affiliation or even evidence of it.

So Donald Trump made allegations which should have been the province of his lawyers against a sitting judge based on that judge’s ethnicity, failing to distinguish between the judge’s ethnic background and his loyalty to this country — or his capacity to meet the demands of his profession (to judge cases that come before him fairly). Is that racism? Perhaps it doesn’t fit the bill 100%, since Trump didn’t explicitly state that Mexicans (or those of Mexican ancestry) should be treated differently by our societyjust because of their ethnicity. But it does blur the line because it differentiates between the professional reliability of those of non-Mexican vs. Mexican ancestry when being  of Mexican heritage has no relevance to one’s capacity to do the job (unless we’re speaking of something like crawling through narrow holes where pygmies and maybe some diminutive Jews like me would be better suited than some Nordic giant).

Racism involves applying racial characteristic as criteria for deciding what others are entitled to have or expect when those criteria are irrelevant to such expectations. Obviously Donald Trump (and many of his supporters) doesn’t think the criteria in this case are irrelevant or he wouldn’t have brought it up. But that IS the point because he should.

This isn’t about pygmies or short Jews crawling through narrow apertures. It’s about a judge sitting in review of a legal action for which he is well trained and, given his history, well vetted by the system which placed him there, to perform. Attempting to disqualify him on the basis of his ethnicity alone strikes many of us as unacceptable and, yes, as a form of racism not least because it sends a hidden message to those who want to hear it that being Mexican excludes you, or should exclude you, from the presumption of professionalism you have earned through your own efforts. Sometimes the messages we send to others are conveyed as much by what we do as by what we actually say. Donald Trump, as he gears up to run in the general election for the presidency of the United States needs to keep this in mind.

About Stuart W. Mirsky

Stuart W. Mirsky, a former New York City official who last served as Assistant Commissioner for Operations in the New York City Department of Health and Mental Hygiene before retiring in 2002, wrote a column, "The Rockaway Irregular," for The Wave, a south Queens based weekly, for more than a decade (until Hurricane Sandy changed the equation). He is an original founder of the Rockaway Republicans, one of the most active Republican groups in southern Queens, and author of a number of books, including The King of Vinland's Saga, an historical novel of the Norse in 11th century North America, A Raft on the River, a memoir of Holocaust survival, and Choice and Action, a work of contemporary philosophy addressing the implications of relativism and nihilism for our moral beliefs.

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