Ladies and gentlemen of the jury,
In the matter of Judge Gonzalo Curiel my client, Donald Trump, is innocent.
Now, I am not asking you to like Mr. Trump or vote for him or anything like that. You and I both know he is an unhinged, neo-fascist ignoramus whose election to the presidency would qualify as a national disaster. But that does not make him guilty in the current case, any more than Osama bin Laden was guilty of killing Abraham Lincoln.
Mr. Trump has been accused of acting in a grotesquely racist manner toward Judge Curiel, who is presiding over a lawsuit brought by former students at Trump University. Mr. Trump has repeatedly accused Judge Curiel of being biased against him because of Curiel’s ethnic background. As Mr. Trump put it at one point, “He’s a Mexican,” and therefore likely to be offended by Mr. Trump’s proposal to build a wall on the Mexican border. (A few days later Trump said he didn’t think a Muslim judge could treat him impartially, either, because of his proposal to bar Muslim entry to the U.S.)
Now, in point of fact Judge Curiel is not Mexican. He was born in the United States — in Indiana — although his parents were Mexican immigrants. In any event, Mr. Trump has continued to complain about Judge Curiel because of his ethnicity, and just about the entire American political universe has come down on my client because of it.
Major newspapers have denounced Mr. Trump for it. So have legal experts. Even a lot of Republican politicians who have been supporting Mr. Trump have blasted him. House Speaker Paul Ryan called his remark the “textbook definition of a racist comment.” My client’s criticisms of Judge Curiel have been described as crude, frightening and more.
Ladies and gentlemen of the jury, these charges are totally unfair. Far from falling outside the norms of current political discourse, Mr. Trump’s remarks are completely obedient to them.
Let me explain.
Cast your minds back a few years to the Supreme Court nomination of Sonia Sotomayor.
If you will recall, nearly every single news account at the time started off with the fact that Ms. Sotomayor would be the first Hispanic justice on the court. According to the inverted-pyramid model for news stories, reporters are supposed to put the most important facts at the beginning of the story.
From the news coverage, therefore, we can infer that the most important fact about Ms. Sotomayor was her Latino ethnicity.
In addition, there was a great deal of commentary from journalists and political figures celebrating that ethnicity. So ask yourself: If Sotomayor’s ethnicity was so overwhelmingly important, why isn’t Curiel’s ethnicity also important?
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You might also recall that after Justice Sotomayor’s nomination some controversy percolated over her own views on this topic. A few years before, she had said in a speech that she hoped a “wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
This wasn’t the only thing Ms. Sotomayor said, though.
She also held that “our experiences as women and people of color affect our decisions.”
And: The “aspiration to impartiality ... denies the fact that we are by our experiences making different choices than others.”
And: “Whether born from experience or inherent physiological or cultural differences ... our gender and national origins may and will make a difference in our judging.”
And: “We may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning.”
And: “A difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.”
And a lot more along those same lines.
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Conservatives said this sort of talk was racist, but liberals and progressives insisted it was not. They said she was simply expressing the basic truth behind the push for diversity: Women, blacks, Latinos, LGBTQ individuals, and other minorities come from different places than “old white men” do, and those backgrounds necessarily influence how they act as judges, politicians, business executives, community leaders, and so forth.
And Justice Sotomayor’s views have not changed since then. Just a couple of months ago, she said the Supreme Court needed more diversity: “I, for one, do think there is a disadvantage from having (five) Catholics, three Jews, everyone from an Ivy League school.”
Ladies and gentlemen of the jury, if Justice Sotomayor and her supporters are right about that, then Donald Trump is also right to be concerned about Judge Curiel’s ethnicity. If she and her supporters are right, then Curiel’s Mexican heritage inevitably will color how he thinks about things, including things like Donald Trump.
Now, I realize this argument sounds a whole lot different when it comes out of Donald Trump’s mouth. When it comes out of his mouth, it sounds like he’s saying people are defined by their ethnic heritage — that the thoughts and behavior of women, blacks, Latinos, LGBTQ individuals, and old white men are determined by their demographic category, not their individual selves. When you put it that baldly, it does sound pretty racist.
But my client is not saying anything different from what Sotomayor and countless others said just a few years ago, too: “National origins may and will make a difference in our judging.” They’re expressing the exact same idea. So if that makes him a bigot, it makes all of them bigots, too. If you convict him, then you must convict them as well.
What’s it going to be?
“Whether born from experience or inherent physiological or cultural differences ... our gender and national origins may and will make a difference in our judging."
- Sonia Sotomayor
