Wednesday, June 8, 2016

Trump’s Realism about the “Mexican” Judge is Legal

Frankly, I am not a Donald Trump fan. Nonetheless, as an academic with an interest in American jurisprudence, I must say that Trump’s “racist” remarks about Judge Gonzalo Curiel are completely in line with the nuances of legal education taught at American law schools. Few legal professionals will be genuinely distraught over what Trump says about the judge.
Let’s recall his words. In speaking to an interviewer Trump said, “I’m building the wall, I’m building the wall. I have a Mexican judge. He’s of Mexican heritage. He should have recused himself, not only for that, for other things.” In saying this, Trump makes a realist’s connection between the existential realities of a judge and his or her decision-making, presuming that what judges do is inextricably connected to who judges are. In this presumption, Trump is positioned right in the mainstream American legal thought.
The print and electronic media are “horrified” as if Trump has committed an inexcusable blasphemy against an all-just, all-fair, color-blind American legal system. The Wall Street Journal, the bastion of white elites’ ideological hegemony,condemned Trump’s remarks as “obnoxious” and “odious.” The New York Times, facing a massive race-based discrimination lawsuit, called the remarks “outrageous.” The electronic media was in a state of frenzy.
Even Former Speaker of the House Newt Gingrich, known for making asinine statements — (such as: “I am convinced that if we do not decisively win the struggle over the nature of America, by the time they’re my age, they will be in a secular atheist country, potentially one dominated by radical Islamists)( atheist and Islamist?)— called Trump’s remarks “unacceptable.” 

Popular criticisms aside, Trump’s remarks constitute a classical proclamation of legal realism. As explained below, his critics rely on the competing notion of disassociation paradigm.
Legal Realism
Unlike Trump, most non-lawyers naively believe that law is a reliable objective reality, a reservoir of instructions from which the most relevant rules can be accurately pulled out and applied to a dispute and that the role of a judge is to do justice under the rules so extracted. This is the 19th-century view of the law. Legal realism, a quintessential American jurisprudence, developed in the early 20th century, is a powerful critique of the authenticity of legal methods, including the predictive application of rules and the power of precedent. “The theory of precedent is simply a gimmick by which clever judges fool other people and stupid judges occasionally fool themselves.” Legal realism has birthed several movements, including the critical legal studies, feminist jurisprudence, and the critical race theory.
The Critical Race Theory (CRT), the most formidable child of legal realism, vigorously meshed with the current legal education, strikes harder at the formalist model of decision-making, further trashing the belief that only rules decide cases. According to the CRT, minorities have special competence to understand racism. The white folks have no experiential basis to fully comprehend racism as do African Americans, Hispanics, and other minorities facing discrimination, exclusion, and micro-aggressions. Judges are influenced by a host of factors, including socioeconomic factors, racial experiences, and gender blindness. Just the law by itself is rarely determinative of outcomes in complex cases, such as Makaeff v. Trump University case.
Under the CRT, one could speculate that Judge Gonzalo Curiel is not immune from experiencing the pangs of Trump’s proposal to build a wall and that the judge might have noted with distress Trump’s orotundity that Mexico exports “criminals and rapists” to the United States. It is perfectly understandable that a judge with the Mexican heritage may nurture experiential angst against Trump, a multi-layered tormenter.
The CRT is conceived to sensitize the legal system with respect to racial minorities. It provides an evidence-based critique of hierarchy and asymmetrical social power. Trump is turning the CRT on its head, complaining that he, a white litigant, cannot get justice from a judge with the Mexican heritage. Trump is creating moral equivalency to a similar apothegm that African-Americans, Hispanics, and Muslims cannot get justice from the establishment judges with white heritage.
Disassociation Paradigm
Inversely related to legal realism is the dissociation paradigm, a phrase I use to capture a reigning jurisprudential construct under which judges are supposed to set aside their personal views and feelings while deciding cases. In 2009, the Senate Judiciary Committee hearings on Sonia Sotomayor’s nomination to the United States Supreme Court invoked the dissociation paradigm to question whether Sotomayor would uphold the law regardless of her personal views. Senator Orin Hatch demanded assurances that Sotomayor’s rulings would be informed by the law, and not “personal feelings or politics.” Senator Mitch McConnell demanded justice free of “feelings or personal or political preferences.” Senator Charles Grassley lectured that Sotomayor should “apply the law, not personal politics, feelings or preferences.” See Taking Ownership of Legal Outcomes.
Under the dissociation paradigm, Judge Gonzalo Curiel is supposed to set aside his feelings of anguish, if any, allegedly caused by Trump’s statements about the Mexicans. If Trump were to endorse the dissociation paradigm as an effective mechanism of legal justice, Trump will have confidence that, much like thousands of white judges who dominate the American judiciary, Judge Curiel too has been professionally trained to apply the law even when the law or its outcome is incompatible with his deeply held views and feelings. 

It seems that Trump does not trust the dissociation paradigm. I don’t either. Perhaps, Trump is fearful of the backlash against his political incorrectness. I, for one, however, reject the dissociation paradigm and maintain that judges should take ownership of the legal outcomes they produce. In deciding cases, judges need not compromise their conscience and the personal sense of right and wrong. For centuries, the common law judges in England and the United States have employed their conscience to decide great controversies. Judges still do it all over the world. Yet the system expects judges to deny that they consult their interiority in deciding cases. If a judge is completely out of line, however, the judicial system does have internal mechanisms to enforce discipline, a mechanism rarely used.

Mr. Trump comes across as a legal realist with little faith in the disassociation paradigm. That’s an acceptable cognitive framework shared by many legal professionals. Relying on this model, Mr. Trump should consider playing the virtual reality role of an apprentice judge. Would Trump be a trustworthy apprentice if a Muslim father were suing the United States for murdering his grandson, a U.S. citizen, with a drone strike? Would Trump be a trustworthy apprentice if a Mexican mother is challenging her deportation with or without the infant born in New York City? And would Trump be a trustworthy apprentice if a powerful white litigant is found to be repeatedly badmouthing a minority judge? These questions, much like Trump’s own questions about Judge Curiel, are legitimate discussion points in any law school for which no student, teacher, or apprentice may be lawfully fired.