Donald Trump at a campaign rally in San Jose, Calif., on Thursday. (Lucy Nicholson/Reuters)
By Ruth Marcus,
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution.”
— Alexander Hamilton, Federalist 78
Somewhere, Hamilton — West Indian, not Mexican — is weeping over Donald Trump and his alarming, ignorant conception of the role of the judiciary.
The latest, scariest manifestation of Trump’s attitude involves his now doubled-down attack on the federal judge — Indiana-born, but Mexican for Trump’s repellent purposes — hearing the Trump University cases.
U.S. District Court Judge Gonzalo Curiel “is a hater of Donald Trump, a hater,” in Trump’s view, “a total disgrace,” because he has allowed the class-action fraud lawsuit to proceed and, most recently, had the gall to unseal documents detailing Trump University’s operations.
In Trump’s universe — governed by the rule of self-interest, not the rule of law — Curiel’s actions can be explained only by his ethnicity: “Mexican, which is great,” but also, Trump told the Wall Street Journal on Thursday, “an absolute conflict” of interest because “I’m building a wall.”
The racism infecting Trump’s assessment — in a Trump presidency, under this cynical assessment, no Hispanic judge could rule on any executive initiative — demands notice and rejection. But Trump’s comments also highlight his disturbing attitude toward the role of the courts.
Reasonable people can differ over the feasibility of judges as neutral umpires, unburdened by ideology, dispassionately deducing the correct legal answer. Still, few would disagree that this conception represents the ideal to which most judges — liberal and conservative, Republican and Democrat, Mexican and Polish — aspire.
This is, for Trump, unimaginable. His world is not one of guiding principles but of gut emotions. If you cross him, oppose him, criticize him, you are a nasty guy or a dummy or a loser, whether you are a reporter or governor or federal judge with lifetime tenure. Trump uses his megaphone to seek to intimidate you as you do your job.
For Trump, litigation is deal-making by other means. The courts exist to hear his lawsuits, bless his bankruptcies, help crush his enemies. He sues willy-nilly, to intimidate critics (defamation suits are a specialty) and gain economic advantage. A USA Today analysis found that Trump and his businesses have been involved in an astonishing 3,500 legal actions in federal and state courts over the past 30 years.
Trump does not settle, or so he claims, because that would signal weakness. When he is losing, or faces the prospect of losing, that is because the legal system — just as the Republican nominating process — is somehow rigged against him.
“I am getting railroaded by a legal system . . . and frankly, they should be ashamed,” he complained of the Trump University lawsuits. Imagine — and shudder — a sitting president crusading like that against a court decision that failed to go his way. President Obama’s in-the-justices’-face criticism of the Citizens United ruling pales by comparison. Trump views judges as just another target for his bullying, like corporate executives who ship jobs overseas or the PGA tour.
For a businessman with such extensive court experience, not to mention a sister who is a federal appeals court judge, Trump demonstrates shocking ignorance. “He’s been criticizing my sister for signing a certain bill,” Trump said of Ted Cruz at a February debate. “You know who else signed that bill? Justice Samuel Alito . . . signed that bill.”
Bill, opinion, whatever. Actually, Alito didn’t sign that “bill.” He filed a separate concurrence on partial-birth abortion.
Ignorance is one thing; disdaining the role of the courts and indicating willingness to misuse them is quite another.
The disdain was illustrated by Trump’s half-cocked, scarcely vetted list of potential Supreme Court nominees. Selecting justices is one of a president’s weightiest decisions, but Trump seemed to give this one less attention than what marble to use in a hotel. Meantime, Trump put these judges in the uncomfortable position of seeming to audition for the job in future rulings.
As to the misuse, listen to Trump on Thursday, about how he would proceed against Hillary Clinton if elected. “Hillary Clinton has to go to jail. She’s guilty as hell,” Trump said. “Five years’ statute of limitations, if I win. Now, everything is going to be fair but I’m sure the attorney general will take a very good look at it.”
So much for presumption of innocence, or the notion that the White House should not use prosecutorial power to go after its enemies. “He’ll have a White House counsel,” Senate Majority Leader Mitch McConnell told radio host Hugh Hewitt.
To listen to Trump is to understand: This is scant assurance.