Before the present Justices on the U.S. Supreme Court decided the Obergefell case involving the specious right of homosexuals to marry, I and many others demanded that Justices Kagan and Ginsburg recuse themselves because of their factually established bias with respect to the main issue involved in that case. Both had performed purported “marriages” involving homosexual couples. When Ginsburg performed her first such specious “marriage” she said outright that “people who love each other and want to live together should be able to enjoy…the marriage relationship.”
In the history of the United States the Obergefell decision is likely to be as fateful, and quite probably fatal, to the unity of the American people, and the survival of their constitutional self-government, as was the Supreme Court’s justly infamous Dred Scott decision before the Civil War. The fact that two of the nine Justice openly flaunted the fact that they had already decided the issue shattered the presumption of Judicial objectivity that is one of the most important safeguards against politically motivated assaults on the independence of the Judiciary.
With good reason, America’s Founders regarded the independence of the Judiciary as the key safeguards for individual rights and justice provided for in the provisions of the U.S. Constitution. But their prudence in this regard did not lead them wholly to immunize the Federal Judiciary against political oversight. The judges are subject to impeachment and removal by the States, respectively and their people, acting through their representatives in the U.S. Congress. But in Federalist #65 Hamilton says that the subjects of a court of impeachment “are of a nature which may with peculiar propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to society itself.”
The bias of the Justices in the Obergefell case illustrates the reasonable grounds that may justify a charge of bias against a Judge or Justice of the Federal Judiciary, consistent with the political responsibility of the representative of the people in the U.S. government, to oversee their good behavior. With this in mind, current events raise an obvious question: How is it acceptable for people to raise a charge of bias against Justice Kagan and Ginsburg, and yet “unacceptable” (as Newt Gingrich claims) for Donald Trump to raise a charge of bias against the judge who is presiding over a case that involves a lawsuit brought against Trump University, in which Mr. Trump’s credibility and reputation for honesty may be at stake?
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Fairness requires that we apply the same standard to both situations. In the case of Justices Ginsburg and Kagan that standard had to do with the fact that they had acted in a plainly prejudicial fashion with respect to the issue involved in a case before them; and that their action, aside from damaging the Judiciary’s reputation for objective judgment. The latter is vital to securing its independence, which is a public good. Leaving aside the fact that Trump did not raise the issue of bias in the Obergefell case, what aspect of the nation’s common good is involved in Donald Trump’s case?
Donald Trump charges that Judge Gonzalo Curiel is guilty of bias in a case that involves his personal name and reputation. To support this charge, he cites the opinion of “experts” who say that the Judge has allowed testimony into evidence that should have been disallowed. To prove this point, he alludes to the fact that all the plaintiffs in the case signed glowing evaluations of the service Trump University provided. From this he infers that any complaints made subsequent to that affirmation should be disregarded.
So far, Mr. Trump’s argument is unexceptional, as to its form. Indeed, it’s an argument any decent lawyer would make in an effort to eliminate testimony averse to a client’s interest, from the proceedings. Of course, it is also entirely within the purview and responsibility of a presiding judge to evaluate the relative weight and significance of evidence for and against this argument. Mr. Trump’s legal experts have their opinion, but only the judge in the case has the lawful authority to decide the argument. Of course, Mr. Trump has the lawful right to appeal the judge’s actions to a higher tribunal.
In one sense, in respect of the Trump University case, that tribunal might end up being the United States Supreme Court. But Mr. Trump is in the midst of a political campaign. The outcome of the case in question might do him political harm. Under our Constitution, the collective vote of the people represents the highest human authority for the powers vested in all of the branches of the U.S. Government. What’s wrong with Mr. Trump appealing to the people themselves?
The Founders whose views prevailed in framing the U.S. Constitution answered that question when they made Constitutional provision for the impeachment and removal of the officers of the U.S. Government, even at the highest level. From experience they gleaned that, in such matters, the people are susceptible to appeals that mobilize their prejudices; take advantage of their ignorance; and generally play upon their angry or resentful passions, to the detriment of right and justice. This is shown by the success of demagogues throughout human history, who have abused the passionate support of the people for their own selfish advantage.
In the Trump University case, which involves his for-profit activities as a private citizen, this appears to be exactly what Mr. Trump is doing. With deep malice aforethought he introduced the issue of Judge Curiel’s Mexican heritage. He slyly cited it as proof of bias, but in fact he relied on the resentment and anger of his audience to usurp the place of proof. An unbiased observer could easily conclude that this exploitation of passion shows that Mr. Trump himself regards the evidence for his charge of bias as tenuous.
Otherwise he would see no need to introduce a provocative argument that is tantamount to saying “Of course, Curiel is biased. He’s a Mexican, and we know those Mexicans can never be fair to a red-blooded, patriotic American, who is building a wall against Mexican immigration.” More recently, he accepted an interviewer’s invitation to extend this logic to Muslims who oppose his proposal to ban all Muslim from entering the U.S.
His critics fault Mt. Trump for “racism.” But is that the real logic of his argument? Race and nationality seem incidental. What is essential is the opposition to Donald Trump. The bias is not racial, It’s not even simply political, its personal. Because he is “building a wall,” they can’t be fair; because he is imposing a ban, they can’t be trusted; because he favors allowing Bruce Jenner to use the ladies’ room, they aren’t being reasonable; because he’s willing to ignore the Constitution, torture his enemies, and make America great again, they can’t be allowed to come out against him.
Of course, none of these things are happening yet. Donald Trump is not “building a wall.” He’s not lawfully empowered to act against the political opponents he routinely disparages and degrades. He cannot yet bar them from participation as citizens, or detain them on other grounds. At the moment he’s just running his mouth. But he’s also running for the office that is rife with practically unlimited opportunities to abuse the powers of the U.S. Government. With that office under his command, he would be positioned to take initiatives against his foes, just as Obama has done. It is, therefore, vitally important that we notice that that’s exactly what he’s doing in the case of Judge Curiel. Mr. Trump is right when he says that the Judge’s offense is not his Mexican heritage. Judge Curiel’s offense is his presumed opposition to Donald Trump. His heritage is just the reason (by itself, unprincipled and unconvincing) for that presumption.
But one of the main purposes of Constitutional government is supposed to be to prevent public officials from turning government into an instrument of their personal vendettas, legal, political or otherwise. Such abuse is the raw essence of elitist tyranny and lawless dictatorship. Tragically, we needn’t speculate about whether Donald Trump will engage in such abuses. He’s already doing so. Before it’s too late, the question Americans, including even his supporters, should be asking themselves is not “Whom will he go after next?” It’s “When will he come after us?”
The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.