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Cepeda: A Trump-Sotomayor alliance on judicial impartiality?

First Published      Last Updated Jun 13 2016 11:33 am

CHICAGO • Imagine that: Donald Trump and Supreme Court Justice Sonia Sotomayor now agree on the role of heritage in a judge's ability to be impartial. They both say it's a non-issue.

After a surprising — and reassuring — display of bipartisan disgust at Trump's recent comments that Indiana-born federal Judge Gonzalo Curiel is biased because his parents are Mexican immigrants, Trump had to backpedal. He released a statement that said his words had been "misconstrued," adding: "I do not feel that one's heritage makes [judges] incapable of being impartial."

Even many of Trump's supporters had denounced him. Speaker Paul Ryan called the candidate's original comments about Curiel "the textbook definition of a racist comment." Newt Gingrich noted, accurately, "If a liberal were to attack Justice Clarence Thomas on the grounds that he's black, we would all go crazy."




Speaking of crazy, there was plenty of that too.

President George W. Bush's disgraced Attorney General Alberto Gonzales came out of the woodwork to support Trump. In a Washington Post opinion piece that underscored several salient points why Curiel is beyond reproach — namely that while Curiel may be a member of a group called the San Diego La Raza Lawyers Association, it is not in any way affiliated with the National Council of La Raza, an advocacy organization — Gonzales sought to explain Trump's unease.

"If ... Trump is acting from a sincere motivation to protect his constitutional right to a fair trial, his willingness to exercise his rights as an American citizen and raising the issue even in the face of severe criticism is surely also something for voters to consider," he wrote, sending judiciary experts across the country into a tizzy.

During a recent telephone news conference, Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, said, "Suggesting that a judge is disqualified from presiding over a matter because of his or her racial or ethnic heritage could ultimately bring our judiciary system to a halt. Judges are randomly assigned to cases in their district, which is a system that has served us throughout our entire history. And, in fact, 30 years ago this year, the Supreme Court ruled, in Batson vs. Kentucky, that it is unconstitutional for anyone to peremptorily challenge a juror based on race or ethnicity, due to the equal protection clause of the 14th Amendment."

Yet despite the many statements about how ridiculous Trump's remarks about Curiel were, at midweek his apologists were still sticking their feet in their mouths as they attempted to stay in the presumed Republican presidential nominee's good graces.

New York state Rep. Lee Zeldin, a Republican, went on CNN and declared, "You can easily argue that the president of the United States is a racist with his policies and his rhetoric."

And then, Sen. Chuck Grassley, R-Iowa, went for the jugular. He told reporters in his home state, "I think that you don't have any more trouble with what Trump said than when Sotomayor said that — when she was found saying in speeches that, quote, 'A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male.' I don't hear any criticism of that sort of comment by a justice of the Supreme Court."

Grassley is wrong on two counts.

First, everyone and their mother heard the criticism over that comment during Sotomayor's confirmation hearings — it, apparently, still haunts her to this day.

Second, Sotomayor herself has, on many occasions, taken pains to clarify her stance on race and ethnicity as a judicial lens, most notably during the second day of her confirmation hearings.

"I want to state upfront, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging," she told senators. "I do believe every person has an equal opportunity to be a good and wise judge, regardless of their background or life experience. ... The words I chose, taking the rhetorical flourish, it was a bad idea. I do understand that there are some who have read this differently, and I understand why they might have concern."

So there it is: Sotomayor and Trump agree that a judge's heritage shouldn't imply an inability to be impartial. And for anyone to suggest that it should is, as even Trump's supporters have made clear, racist.

Worse, as other Republicans have noted about this latest Trump offense, it's un-American.

estherjcepeda@washpost.com

Twitter, @estherjcepeda

 

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