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Trump's judicial double standard: Column

Let’s be clear: It is OK to criticize judges — to a certain extent. I do it from time to time as a journalist who covers the U.S. Supreme Court. But Donald Trump has crossed the line.

Let’s be clear: It is OK to criticize judges — to a certain extent. I do it from time to time as a journalist who covers the U.S. Supreme Court. But Donald Trump has crossed the line.

Justices and judges sometimes do boneheaded things, just like journalists and everyone else, and should be taken to task for doing so. Judges are public officials, and as such should have thick skins (which Trump seems to lack).

And in the case of federal judges, they have life tenure, which goes a long way toward softening the sting of criticism. Short of fomenting a move to impeach Judge Gonzalo Curiel, Trump can’t touch him.

The presumptive Republican presidential nominee, however, is in unfamiliar territory for an aspiring national leader. He is challenging a basic premise of the independent judiciary created by the Constitution — that duly appointed judges rise above their personal views and backgrounds to rule fairly, according to the facts and the law.

For Trump to suggest that Judge Curiel cannot fairly rule in a civil lawsuit against Trump University because “he’s a Mexican” undercuts that presumption in a way that runs contrary to how most presidents behave and has earned him criticism across the political spectrum. Trump argues that his plan to build a wall at the Mexican border makes the Indiana-born Curiel, whose parents were Mexican immigrants and who has affiliation with Hispanic groups, ineligible to rule in his case.

Trump complained Tuesday that his remarks had been “misconstrued as a categorical attack against people of Mexican heritage.” But he repeated his assertion that “unfair and mistaken rulings” in his case and Curiel’s “reported associations with certain professional organizations” made it fair for him to question Curiel’s impartiality. “I misspoke” is not a phrase Trump likes to utter.

Presidents, who swear to uphold the Constitution, bolster the independence of the judicial branch when they say, as they often do after an unfavorable ruling, “I don’t agree with the decision, but it is now the law of the land.” They usually don’t sling mud at the judge.

Take the late Supreme Court Justice Antonin Scalia, whom Trump admires. In the late 1980s, Scalia — who was conservative through and through — cast the deciding vote to strike down state and federal laws that made it a crime to burn an American flag. He believed that the First Amendment protected that form of expression, as repugnant as it might be.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said afterward. “But I am not king.”

President George H.W. Bush did not like the rulings and launched an unsuccessful effort to amend the Constitution to ban flag burning, but he did not attack Scalia.

Trump, by basing his criticism on Curiel’s ethnic background and affiliations, has also revived memories of the days when African-American judges were a rarity, and some litigants asked them to recuse in cases involving civil rights.

POLICING THE USA: A look at race, justice, media

For many years Thurgood Marshall, who became the Supreme Court’s first black justice in 1967, recused himself in most, though not all, of the cases in which the NAACP or the NAACP Legal Defense and Educational Fund were involved until 1984. But that was because he had worked for the NAACP and helped found the legal defense fund — not because he was black. (If Judge Curiel had a direct interest in Trump University, he'd likely have recused, too.)

Then there is the example of the late Philadelphia federal judge A. Leon Higginbotham, whom I had the privilege of knowing. In 1974, parties in a civil rights lawsuit asked him to recuse himself because he was African-American and had made pro-civil rights speeches.

“I concede that I am black. I do not apologize for that obvious fact,” Higginbotham wrote as he denied the request. “As do most blacks, I believe that the corridors of history in this country have been lined with countless instances of racial injustice.”

But if he recused himself because of his race or views, Higginbotham continued, he'd perpetuate a double standard that would allow white judges to talk about race while black judges could not.

More than 40 years later, Trump seems bent on imposing a similar double standard.

Tony Mauro, a member of USA TODAY's Board of Contributors, is Supreme Court correspondent for law.com, The National Law Journal and the Supreme Court Brief. Follow him on Twitter: @Tonymauro

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