Can Trump Fairly Appoint Judges or Supreme Court Justices?
The latest kerfuffle caused by the incorrect meeting between President Clinton and the Attorney General Loretta Lynch raises similar questions about Republican Presidential candidate Donald Trump. Donald Trump has been involved in 3500 court cases of people suing him or his companies, and of him suing people and companies. These cases must involve hundreds of judges. Furthermore, Trump is from New York. Many past Supreme Court Justices have come from the New York area, having trained at Harvard or Yale Law. This is where Trumps’ company is headquartered. All of these may provide grounds for judges to disqualify themselves from cases that could involve Trump’s administration or its policies. Even judges in the New York area that have read accounts of his cases in the press or heard about them in the media might have to disqualify themselves.
Clearly there would be conflicts of interest if Trump nominated any judges that ruled favorably or treated him favorably in his or his company’s case. On the other hand, his exclusion of any judges that ruled against him or were considered as having treated him unfairly would also be undemocratic and considered a violation of judicial ethics. The justices should be evaluated on their knowledge and experience on the bench, or as judicial experts or law professors.
In the particular case of the Trump University lawsuits, Trump claim that U.S. District Judge Gonzalo Curiel was Mexican and therefore is or must be prejudiced against him because he was going to build a wall on the Mexican border, (not to mention deport 11 million illegal immigrants, half of which are from Mexico.). Trump did not mention that the judge was born in Indiana, and Trump was carrying over his parents’ heritage to him. Actually, Judge Curiel did treat Trump fairly in postponing the case until after the election. The FBI investigation into Clinton’s email server did not grant her such a favorable exemption.
Trump’s charge against Judge Curiel shows that if Trump’s administration loses any cases in federal court or in the Supreme Court, he will claim that it was because the judges or Supreme Court Justices are prejudiced against him. He will not be able to understand that they result because he does not understand the constitution of the United States.
Lets look at issues or countries where Trump could claim that justices had to be excluded because of a conflict with his extreme policies. Clearly any justice with a Hispanic name would be excluded. Because of his misogynistic statements and policies, he would also exclude any women justices, or any justices whose parents might have included a woman, since they would be prejudiced against him.. Trump also has argued with the Pope, meaning he could rule out any Catholic justices who, in his mind, might resent his argument with the Pope. Four of the Supreme Court Justices are Catholic. Trump is also going to exclude Muslims from entering the US, and monitor those here. Any lawyers who’s heritage comes a from Muslim country would be excluded from Trump’s appointments.
Today, after most of this article was written, Trump tweeted an anti-Clinton add showing a background of cash, and a red Jewish Star of David. It was replaced two hours later with a red circle. Trump must explain how this unmistakable and ancient anti-Semitic slur came to be used. If not in Trump himself, it shows the presence in his political organization of a definite anti-Semitic stripe.
Trump has claimed that China has been taking jobs by unfair trading, and that global warming is a Chinese plot, which, in his mind, eliminates judges of Chinese heritage. Trump has also criticized Japan and South Korea, eliminating many other justices of Asian heritage. If Trump picked a Justice of German or Scottish and therefore U.K. heritage, he would be accused of prejudice to his own heritage.
Candidate Trump has already stated that he would not nominate a Vice President who was a woman or a minority, calling it pandering. He may have a similar attitude toward justices. Since this probably excludes 60% of Americans, it violates the tradition that justices should just be nominated on the basis of knowledge and judicial qualifications. It also shows extreme misogyny and racial prejudice, and raises the question of whether any Democratic Senators should vote for confirmation of his nominations, since they have been selected on a prejudiced basis, even if the nominee is qualified. Trump also plans to choose a Supreme Court Justice based on the extreme conservativeness of the judges’ views and rulings, which also violates the precedent and traditional approval of justices without screening them on party or particular issues or rulings.. This also makes the appointments highly political. So far, Trump has only accepted advice from very conservative groups. Since Trump changes policies daily, as he eventually learns something about a subject, and receives public reaction, he is the last person who should require justices with fixed judicial views.
We conclude that Trump cannot make any nomination of judges or Supreme Court Justices without being accused of extreme prejudice. His choices would be sharply questioned by the Senate, by the American Bar Association, by media legal commentators, and by law professors. Trump should instead defer to a committee appointed by the American Bar Association to nominate judges and Supreme Court Justices . This committee would be broadly representative of American law schools, and of the cultural, racial, and religious sectors of America.