Hispanic Judges and Who Said It First

 

Sotomayor Latina MagazineJustice Sonia Sotomayor’s comment that a “wise Latina woman” will make a better decision than a white male judge is well known and, inexplicably to me, didn’t get her branded a racist and disqualified from the bench.

However, now that Donald Trump is taking mega-heat from all sides for saying the judge in his case, who is of Mexican descent, might not be fair to him, another of Sotomayor’s comments, even more on point, needs to be looked at:

“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”

Note well: She said, “…may and will make a difference in our judging.”

I did a word count of her confirmation hearing. The Senators preening for the cameras outspoke her 67 percent of the time, which is probably why none of those amateur cross-examiners had time to ask her, “Your heritage will affect your judging? How?”

Now comes Donald Trump, who worries that exactly what Sotomayor said will happen is happening to him. What I’m curious about is the cognitive dissonance of the American noosphere when processing Sotomayor’s and Trump’s shared contention. Let’s examine:

Sonia Sotomayor said a judge of Latino heritage will be affected in his judging by being Latino. The American response was to slather ourselves in the self-glory of multiculturalism and put her on the Supreme Court for life.

Donald Trump said what Sonia promised will happen is happening to him now, and America’s response is to say it’s impossible for such a thing to happen and brand him a racist and unfit to serve for even four years.

Same contention — different response.

For the purpose of this piece, I don’t care whether anyone agrees with Donald and Sonia, disagrees, or any other measured, well thought out or careless analysis in the middle. I want to know what causes a society to accept as true a maxim presented by one person who gets rewarded, yet accept the same maxim as impossible to be true when said by another, who gets figuratively tarred and feathered.

I see several possibilities. Perhaps we are so afraid to be mistaken for racist that we won’t disagree with a person of a certain heritage, even if that person herself says something racist. Perhaps we suffer media malpractice in the manner and frequency certain ideas get presented (or media omission of facts and ideas). Perhaps we have short memories. Perhaps we have divided ourselves into such rabid political teams that no one wants to admit their teammate said something wrong.

As for me, I find at least some blame in the harmful little chestnut so often stated that we are “a nation of immigrants.” I put some blame on the idea that assimilation and American culture are not important. I blame Sotomayor and others for putting any significance on bloodline ahead of Americanism.

We are not a “nation of immigrants.” A family legally loses immigrant status with the first generation that was born here. By the second generation born here, they’ve lost most if not all cultural traditions of wherever their ancestors came from.

I speak from experience. My grandparents were born in Italy. My father was born here. I was born in New Jersey and have nothing but American cultural traditions and loyalties. Am I supposed to call mine “an immigrant family?” I’ll damn you for suggesting it. My grandparents were immigrants. The 50 or so people who descended from them were all born and raised here. We are an American family.

It appears schizophrenic when a country at one time screams for diversity, insists upon diversity, legislates diversity, and applauds diversity, but then calls anyone racist who points out that another person is different from them. So what is it? Why is Trump in trouble for using the Sotomayor axiom that a judge’s lineage affects judging, while that same axiom helped her become a judge?

Published in General, Law
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  1. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    Ed G.: “for the race”

    I’m not a Spanish speaker, but as I understand it this is only one possible translation, and that makes good sense to me: I assume it has the same root as the French “racine,” which can mean root, origin, race, heritage. I’ll defer to our Spanish-speakers about whether the overtones of the word in Spanish are sinister. I wouldn’t consider a black professional group that called itself “Roots” sinister, although I’d think it a bit … 1970s retro.

    • #91
  2. Jamie Lockett Inactive
    Jamie Lockett
    @JamieLockett

    Claire Berlinski, Ed.: I wouldn’t consider a black professional group that called itself “Roots” sinister, although I’d think it a bit … 1970s retro.

    They’re also kinda…funky…

    • #92
  3. KC Mulville Inactive
    KC Mulville
    @KCMulville

    Bob Thompson: You are saying that a political party-line ruling is how it is designed?

    No. I’m saying that the original design of the Constitution (based on checks/balances based on locality) has since been effectively replaced by a binary power balance based on party.

    The problem is that political parties are not based on defined interests, which would free them to coalition with other groups. The parties (especially accelerated by the media) are much more emotional and “tribal.” The other party is bad mostly because they’re not us. Since parties are based on a binary distinction between Us and Them, a system that only has two parties will inevitably come to equilibrium – and stalemate.

    Whether he’s conscious of it or not, Trump’s unspoken premise is that this judge has become politicized; therefore the verdict will be political. If the judge is a partisan, he can’t render a non-partisan ruling, which is true by definition.

    Of course, it’s just convenient that if the judge was completely impartial, Trump should probably lose the case (according to current reports) on the merits. Lucky for him that the judge can be depicted as impartial.

    • #93
  4. Ed G. Inactive
    Ed G.
    @EdG

    Claire Berlinski, Ed.:

    Ed G.: “for the race”

    I’m not a Spanish speaker, but as I understand it this is only one possible translation,[……] I’ll defer to our Spanish-speakers about whether the overtones of the word in Spanish are sinister. [……]

    Sinister is subjective, though, and that’s part of the problem. We can surely tell the difference between the Black Panthers and the Polish group at my church which gets together to don their old country outfits and dance the old country polkas. Sometimes the line is a bit fuzzy, though. Perhaps Curiel’s chapter isn’t part of that La Raza, but they do link to it (presumably favorably and not as part of a “things not to do” section of the website). Questioning the line isn’t vile or evidence of racism.

    Another problem is that you’re dancing around my point: whether an organization is sinister or whether the participant has sinister motives would be beside the point in my example. Yeah, Rhett was only in the Whitey’s Rule club to advance his career. Would that fly? So why doesn’t that matter when it comes to a Mexican judge? Are you buying into the left’s framework that minorities can’t be racist or that only they have moral justification for this kind of discrimination and that they can’t even be questioned?

    • #94
  5. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    Ed G.: they do link to it (presumably favorably and not as part of a “things not to do” section of the website)

    They also link to the Anti-Defamation League. Does one link cancel out the other?

    • #95
  6. Ed G. Inactive
    Ed G.
    @EdG

    Claire Berlinski, Ed.:

    Ed G.: they do link to it (presumably favorably and not as part of a “things not to do” section of the website)

    They also link to the Anti-Defamation League. Does one link cancel out the other?

    Would it help in the example I’ve been giving you of a white judge?

    Otherwise, no, I don’t think they cancel. I think you should better acquaint yourself with the balkanized leftist racial regime. Allies, not compatriots. Like libertarians and conservatives.

    • #96
  7. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    Ed G.: So why doesn’t that matter when it comes to a Mexican judge?

    Because this line of argument has no judicial merit (which is why his lawyers haven’t dared to try such an inane argument). I realize the NYT is widely and rightly viewed as a partisan source, but they’re absolutely correct on this point:

    Federal judges have repeatedly and emphatically refused to recuse themselves from cases because of their race or ethnicity. These rulings were driven by two realizations: Ethnically based challenges would reduce every judge to a racial category, which would be racist in itself. And such challenges would make judges vulnerable to recusal motions — for reasons of race, ethnicity, gender or religion — in every case that came before them.

    Unless there is a specific reason to suspect Judge Curiel of racism — and belonging to a group called “La Raza” is not one — it is outrageous to insinuate he is. Given that doing so is absolutely antithetical to a long tradition of American jurisprudence — and for very good reason — this tells me that Mr. Trump is trying to discredit the judge in the court of public opinion. This suggests something very unpleasant is going to come out when those documents are released, which Trump is trying, pre-emptively, to mitigate in the public mind with the idea that the judge “has it out for him because he’s racist.”

    Anyone of Hispanic heritage who tried to get a judge removed because “he’s racist” would have some very high hurdles to cross to establish this. Very. Membership in the local Rotary club would not not constitute evidence, even if it might be true that only old white guys join Rotary. We could not have a judiciary that functioned on that basis.

    • #97
  8. MarciN Member
    MarciN
    @MarciN

    I think “conflict of interest” questions could be raised based on a judge’s club and association affiliations. If a judge belonged to a fathers’ rights group and was sitting in on a woman’s divorce proceedings, her lawyers would be correct to challenge his ability to be impartial.

    However, Curial is not, as far as we know, a member of the lawyers’ association in question. It was just a link on a website to the lawyers’ association.

    Furthermore, the case against Trump was not involved in an immigration action or discrimination, so Trump’s questioning his impartiality seems at odds with the case.

    However, courtroom judgments are always subjective, and given the depiction of Trump as against all Mexican immigration–it’s been done to the point that people are stirred up to be very rough in anti-Trump demonstrations–then I think Trump asked a fair question. Is this judge so anti-Trump that he cannot be impartial?

    If there has been a pattern of the judge’s ruling against Trump when the judge’s rulings could have gone either way, then Trump asked a fair question: why is the judge being so hard on me and my lawyers?

    I think Trump is behaving, by the way, like a normal human being. I have never known anyone losing a courtroom case who thought the judge was fair. :):)

    • #98
  9. Ed G. Inactive
    Ed G.
    @EdG

    Claire Berlinski, Ed.:

    Ed G.: So why doesn’t that matter when it comes to a Mexican judge?

    Because this line of argument has no judicial merit (which is why his lawyers haven’t dared to try such an inane argument). […..]

    OK, but it does have practical merit, doesn’t it? The assessments of Trump as vile and racist aren’t relying on judicial merit any more  than would be the case in my example of a white judge. The questioning of such a white judge would be obvious and not an indication that questioner is vile or racist (though not dispositive of those traits either).

    • #99
  10. Mike LaRoche Inactive
    Mike LaRoche
    @MikeLaRoche

    Any group calling itself “The Race” is, by definition, racist.

    • #100
  11. Ed G. Inactive
    Ed G.
    @EdG

    Claire Berlinski, Ed.:

    Ed G.: So why doesn’t that matter when it comes to a Mexican judge?

    Because this line of argument has no judicial merit (which is why his lawyers haven’t dared to try such an inane argument). I realize the NYT is widely and rightly viewed as a partisan source, but they’re absolutely correct on this point:

    Federal judges have repeatedly and emphatically refused to recuse themselves from cases because of their race or ethnicity. These rulings were driven by two realizations: Ethnically based challenges would reduce every judge to a racial category, which would be racist in itself. And such challenges would make judges vulnerable to recusal motions — for reasons of race, ethnicity, gender or religion — in every case that came before them.

    Unless there is a specific reason to suspect Judge Curiel of racism — and belonging to a group called “La Raza” is not one — it is outrageous to insinuate he is. […..]

    I do think membership in such an organization is a valid reason, and I don’t think the suggestion is outrageous. It may be incorrect but outrageous it isn’t.

    It wouldn’t be outrageous if the identities were reversed and it shouldn’t become outrageous simply because it better fits the leftist racialist framework.

    • #101
  12. Ed G. Inactive
    Ed G.
    @EdG

    MarciN:[…..]However, courtroom judgments are always subjective, and given the depiction of Trump as against all Mexican immigration–it’s been done to the point that people are stirred up to be very rough in anti-Trump demonstrations–then I think Trump asked a fair question. Is this judge so anti-Trump that he cannot be impartial?

    If there has been a pattern of the judge’s ruling against Trump when the judge’s rulings could have gone either way, then Trump asked a fair question: why is the judge being so hard on me and my lawyers?

    I think Trump is behaving, by the way, like a normal human being. I have never known anyone losing a courtroom case who thought the judge was fair. :):)

    Indeed. Trump questioned Curiel’s fairness especially in light of Trump’s unique position as a presidfential nominee and then he went on to speculate on a few possible reasons:

    1) a political hack (as an Obama appointee)

    2) a leftist hack

    3) a racist/racialist hack (believing in the racialist regime assumed by the left)

    Trump may be incorrect about one or all of these speculations or the initial assessment of unfairness, he may not have a legal case, but raising the issue isn’t vile or racist in and of itself.

    • #102
  13. MarciN Member
    MarciN
    @MarciN

    Ed G.: Trump may be incorrect about one or all of these speculations or the initial assessment of unfairness, he may not have a legal case, but raising the issue isn’t vile or racist in and of itself.

    We agree on this. :)

    The only thing I can’t figure out is why he made this a public issue instead of having his lawyers address it. I keep wondering if it was strategic somehow. California appoints judges for the judges’ first term, but then the judges have to be elected in yes/no general elections afterward. (That makes judges political fodder in some ways in which they wouldn’t be in Massachusetts, where judges are appointed and not elected.) So I wonder if Trump was trying stir up opinion against the judge for some reason.

    • #103
  14. Ed G. Inactive
    Ed G.
    @EdG

    MarciN:

    Ed G.: Trump may be incorrect about one or all of these speculations or the initial assessment of unfairness, he may not have a legal case, but raising the issue isn’t vile or racist in and of itself.

    We agree on this. :)

    The only thing I can’t figure out is why he made this a public issue instead of having his lawyers address it. I keep wondering if it was strategic somehow. […..]

    It’s a public issue because 1) Trump is running for president and things he’s involved in will also get sucked into the vortex of public issues. 2) Race is a public issue; either the public will start rejecting the left’s framework and this case can be brought up in defense the next time the races are reversed, or the public will embrace the framework and at least we’ll have a better chance of it being applied more fairly; either way it’s a small and weird step in the direction of color blindness and/or equal application of racial ethics.

    • #104
  15. Mike Rapkoch Moderator
    Mike Rapkoch
    @MikeRapkoch

    I have begun to read the briefs in the case. I will try to put up a post detailing the legal issues about which Mr. Trump has complained. Since it will take some time to sort through the various motions, I’ll not be able to do this for several days. From my initial review of the I have not yet identified a legal basis for Trump’s complaints.

    As for Trump publicly attacking the judge for alleged bias, in 25 years in practice just about every party on the losing side complains about the judge or jury. No man is a good judge in his own case. What else is new?

    Also, the plaintiff who was allegedly discredited by her own case, motions by a party plaintiff requesting that her case be dismissed are almost always granted for the simple reason that a party cannot be compelled to continue the litigation. In addition, this is a class action involving hundreds of plaintiffs. The fact that a single plaintiff is discredited does not justify the dismissal of the other claims.

    Trump has not been prejudiced by her dismissal. He may call her as a witness if his lawyers believe she has relevant testimony.

    When I looked at Trump’s complaints, which are partly set out on his website, he contends that he has a bunch of experts whose testimony was so strong that he was entitled to summary judgment. However, the credibility of a witness is always a question for the jury. Summary judgment motions are not favored because the law presumes that a jury be the final authority on matters of material fact.

    The Supreme Court ruled long ago that race alone is not a legitimate reason to strike a potential juror. I will have to do some research, but I am confident that the same rule applies to disqualifying judges.

    There are many legal issues in the case. It seems prudent to look first at the actual issues before concluding that the judge is biased against Mr. Trump. The rule of law applies even to cases which involve Mr. Trump. I would think that conservatives would support that proposition.

    • #105
  16. goldwaterwoman Thatcher
    goldwaterwoman
    @goldwaterwoman

    We might all do well to take into account the obvious fact that this judge chose to release some 300 pages of private defense documents to the public when the case isn’t even due to be heard until November. That act alone was most unusual.  Even George W. Bush former attorney general, Alberto Gonzales, who is not a Trump supporter, has said he believes Trump is right in questioning the judge’s fairness.  Gonzales was quoted by the Hill as saying,”“As someone whose own ancestors came to the United States from Mexico, I know ethnicity alone cannot pose a conflict of interests. But there may be other factors to consider in determining whether Trump’s concerns about getting an impartial trial are reasonable.”

    • #106
  17. Mike Rapkoch Moderator
    Mike Rapkoch
    @MikeRapkoch

    goldwaterwoman:We might all do well to take into account the obvious fact that this judge chose to release some 300 pages of private defense documents to the public when the case isn’t even due to be heard until November. That act alone was most unusual. Even George W. Bush former attorney general, Alberto Gonzales, who is not a Trump supporter, has said he believes Trump is right in questioning the judge’s fairness. Gonzales was quoted by the Hill as saying,”“As someone whose own ancestors came to the United States from Mexico, I know ethnicity alone cannot pose a conflict of interests. But there may be other factors to consider in determining whether Trump’s concerns about getting an impartial trial are reasonable.”

    In the first place, it is not at all uncommon for documents in a case to be open to the public. My practice involved cases with thousands of documents and they were part of the public record. This, too, is a legal issue, and I will be reviewing the legal issues to determine whether the judge might have erred. It is a legal issue, the propriety of which can only be determined under the governing law.

    As for Mr. Gonzales, I would encourage you to note the final sentence: “But there may be other factors to consider in determining whether Trump’s concerns about getting an impartial trial are reasonable.”

    • #107
  18. Midget Faded Rattlesnake Contributor
    Midget Faded Rattlesnake
    @Midge

    Claire Berlinski, Ed.:

    Ed G.: “for the race”

    I’m not a Spanish speaker, but as I understand it this is only one possible translation, and that makes good sense to me: I assume it has the same root as the French “racine,” which can mean root, origin, race, heritage. I’ll defer to our Spanish-speakers about whether the overtones of the word in Spanish are sinister…

    I’m not a Spanish speaker, but I’m a passable Spanish reader. I can’t read well enough to tell a good Spanish etymology dictionary apart from a bad one, necessarily, but here is one online etymology dictionary’s entry for “raza”. It says the origin of the word is contested, perhaps coming from Latin “radius” or “radix” – or possibly “ratio” (or even an Arabic word).

    Screen Shot 2016-06-08 at 3.22.17 PM

    Perhaps the most interesting thing about this dictionary is that the author of the entry sees fit to include some rather personal reflections on usage below the list of origins.

    In this case, the reflections start, “My friend Joaquin explained to me that there aren’t races among humans. That it’s a false concept and that continuing this concept is racist…” Really a rather interesting reflection, and worth reading in its entirety. (He says, among other things, that living in the United States was what cost him the idea that race as a concept doesn’t really exist.)

    • #108
  19. MarciN Member
    MarciN
    @MarciN

    Midget Faded Rattlesnake: In this case, the reflections start, “My friend Joaquin explained to me that there aren’t races among humans. That it’s a false concept and that continuing this concept is racist…” Really a rather interesting reflection, and worth reading in its entirety. (He says, among other things, that living in the United States was what cost him the idea that race as a concept doesn’t really exist.)

    I edited four books by Conrad Kottak, an anthropologist at the University of Michigan, all of which are in subsequent editions since I worked them in the late 1980s and early 1990s. The one thing I got out of the books was that the concept of distinct human “races” has been effectively squashed. That said, I edited a very interesting book about a year ago on evolution that looks at it largely from the genetic point of view–Alice Roberts, The Incredible Unlikeliness of Being–which made me think that we may be returning to a racial construct because it may be possible to trace ancestry for the first time. It is fascinating.

    But with intermarriage–as James Michener so often describes as the greatest peacemaking force in this world–race seems like a ridiculous way to look at our fellow human beings.

    • #109
  20. Hoyacon Member
    Hoyacon
    @Hoyacon

    Why is it that this issue, as discussed here, is largely devoid of references to Trump’s actual words?   Once we get past the usual inappropriate bluster–such as calling a federal judge a “hater”–there may indeed be a decent discussion about the judge’s objectivity.  But it’s not really the first point unless one is looking for a reason to ignore Trump’s usual bloviating.

    • #110
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