Trump’s attack on Judge Curiel and Proposition 8’s Vaughn Walker.

Blame National Review Conservatives for Trump’s Racist Judge-Bashing 

Blame National Review Conservatives for Trump’s Racist Judge-Bashing 

Outward
Expanding the LGBTQ Conversation
June 6 2016 12:19 PM

How Anti-Gay Activists Enabled Trump’s Racist Judge-Bashing

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Donald Trump, student of history.

Chip Somodevilla/Getty Images

Because Donald Trump is the Republican Party’s Frankenstein’s monster—a product of the party’s decadeslong strategy of bashing minorities for votes—his positions can often be traced directly back to a former GOP talking point. Take Trump’s campaign against Judge Gonzalo P. Curiel. Trump insists that Curiel should recuse himself from a trial concerning Trump University, arguing that his Mexican heritage prevents him from ruling impartially. The GOP establishment and its media water-carriers have disapproved of Trump’s willingness to question a judge’s integrity based solely on his identity.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Yet this move actually comes straight out of the conservative playbook: It was vigorously deployed in an effort to prevent a gay judge from ruling on California’s same-sex marriage ban.

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The smear campaign against Judge Vaughn Walker in 2010-11 was probably the sleaziest maneuver ever attempted by anti-gay activists. A lawsuit against Proposition 8, which outlawed same-sex marriage in California, had landed on his docket. Although Walker was an independent-minded conservative first nominated by Ronald Reagan and appointed by George H.W. Bush, Prop 8’s defenders were terrified that he would invalidate their hard-won marriage ban. So they pushed for Walker to recuse himself on the grounds that, as a gay man in a relationship, his rulings would be inherently biased.

Of course, this wildly offensive recusal motion was firmly denied, and Walker ruled that the same-sex marriage ban violated gay Californians’ constitutional rights. But Prop 8’s press cheerleaders harped on Walker’s sexual orientation before the trial, then used it to delegitimize his decision. The National Review’s Ed Whelan led this calumnious charge, insisting in screed after screed that Walker was incapable of impartiality due to his orientation. In fact, Whelan even argued that an appellate court should vacate Walker’s ruling outright because he was gay and, therefore, biased. (When criticized, Whelan asserted that Walker shouldn’t be disqualified because he is gay, but because he is in a same-sex relationship. That feeble tergiversation is below a man of Whelan’s intellect.) Eventually, Whelan rounded out his character assassination of Walker with a completely baseless claim that the judge seized on the Prop 8 case as a means to “feather his own post-judicial nest” by building “goodwill among many prospective San Francisco employers.”

The chickens, quite simply, have now come home to roost. When the National Review, talk radio, Fox News, and GOP-aligned anti-gay groups traduced Walker’s integrity on the basis of his identity, they telegraphed to the conservative base that this kind of vile obloquy is once again acceptable. Through the Walker incident, conservatives had reopened the door to an execrable tactic—which, unsurprisingly, had been deployed by conservatives decades earlier to disqualify black and female judges. It failed then, too. As my colleague Dahlia Lithwick explained in 2011, the low point for the recusal movement came when attorneys attempted to remove U.S. District Judge Constance Baker Motley from a sex discrimination suit because she is a black woman. “Motley's response,” Lithwick wrote, “is as true for Walker today as it was for herself in 1975”:

If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.

Trump may be a singularly appalling candidate, but his ideas did not emerge out of nowhere. Republicans profess disgust at his racist judge-bashing, yet it was their own coordinated campaign against Walker that set the precedent. Actions have consequences; bigotry, once fostered and normalized, cannot be so easily contained. And the seeds of Trump’s latest bigoted attack were planted by conservative hands.