A litmus test for Trump’s racism

Either Republican presidential nominee Donald Trump does not understand how the American judicial system functions, or else he is singling out American judges who are of Mexican heritage or Muslim faith for scapegoating in the public sphere.

{mosads}Trump has repeatedly argued that an American judge born in Indiana, whose parents emigrated from Mexico, cannot objectively handle a lawsuit against now-defunct Trump University. Trump says that this is because his plan to build a wall along the border with Mexico presumptively infuriates every American of Mexican heritage so much that no judge with that background can be fairly preside over a case in which Trump is a party.

Recently, Trump has gone even farther, suggesting that American judges who are Muslim also might not be able to be impartial in hearing cases involving him, presumably because his proposal to “temporarily” ban all Muslims from entering the country presumptively offends all Americans who practice that religion.

Trump insists that his argument to disqualify judges based on their heritage or religion is not racist or bigoted, even though it involves classic stereotyping; rather, it’s just “common sense.” Trump seems to think that a judge cannot be objective if a litigant has expressed views or policy positions that might reasonably offend the judge.

Trump is completely wrong about the law of judicial recusal. No one could reasonably question a judge’s impartiality just because a litigant has endorsed policies that would affect the country of origin of the judge’s parents. If that were cause for recusal, we would have to double or triple the sizes of the federal and state judiciaries because judges would constantly have to recuse themselves in response to litigant claims of bias based on the judge’s race, nationality, religion, ethnicity, gender, sexual orientation or gender identity. Courts have wisely rejected such claims for decades.

More important than the propriety of recusal, however, is whether Trump is promoting racism and religious bigotry beyond the stereotyping noted above.

There is a simple way for the news media to test whether Trump is being bigoted.

First, they should compare Trump’s statements and policy proposals that might offend Americans of Mexican heritage or Muslim faith with his statements and policy proposals that might offend members of many other groups. Then, they should ask Trump whether he thinks that Muslim or Mexican-American judges alone — unlike members of other potentially offended groups — should recuse themselves for lacking impartiality.

For example, Trump has upset Japan and South Korea by questioning the cost of America’s military commitments to those countries, and stating that he would be willing to withdraw American troops from them if they did not agree to pay more of the costs of housing and feeding the troops. Does Trump think that American judges of Japanese or South Korean heritage should recuse themselves in any case involving him?

Trump has a long history of nasty, demeaning statements about women, recently including Megyn Kelly of Fox News and former presidential candidate Carly Fiorina. (For a compilation, see this New York Times piece.) Does Trump think that female judges (or male judges who take offense at such statements) should recuse themselves in cases in which he is a litigant?

Trump has questioned the wisdom of American involvement in NATO, decried its cost to America and called for European allies to pay more for their own defense. As a matter of “common sense,” judges with parents from the affected countries might be offended by this proposal. (It is also possible they might not, but that is equally true of the Mexican-American judge in the Trump University case.) Does Trump think that judges of particular European heritages should recuse themselves from his lawsuits?

If Trump thinks that all of the judges mentioned above would lack impartiality in cases involving him, then it is even clearer that his views are no way to run a judicial system, and that he is trying to use “common sense” to undermine basic American traditions of judicial integrity and impartiality.

If Trump does not think that all such judges — say, Christians of European ancestry — would be biased against him, then members of the media should ask him why he has singled out for recusal only judges of a particular minority heritage or a particular minority religion. If he cannot offer a reasoned explanation, then he has simply chosen racial and religious scapegoats for public exploitation.

This piece has been updated on June 10, 2016 at 3:14 p.m.

Siegel is a professor at Duke University School of Law.