Trump and the Law Professors: "Textbook" v. "Law Review" Racists?

Bias and Mistrust

According to CNN, "House Speaker Paul Ryan ripped Donald Trump's recent remarks saying a judge presiding over a lawsuit involving his business was biased because of his Mexican heritage as 'the textbook definition of a racist comment.'" In addition to Ryan, whose judgment may itself be biased because he reportedly is motivated by a desire for Trump to lose and clear the way for his own presidential ambitions, Trump has received some criticism from Christians. They claim that, as a matter of faith, we may not include a judge's race in arguments about a particular judge's partiality, even if as Trump alleges, he has a history of unfair rulings against a person of another race in a particular case.

To share some of the context for these claims familiar to me, U.S. law professors have been claiming that white judges are generally biased because of their racial background for many years. (And, one shouldn't even get started on white juries, whose racial bias is treated as self-evident.) If Trump is a "textbook racist," as Ryan claims, should those making these claims be called "law review racists?"

Here's a few samples of the first couple of law-review articles I pulled up searching for "white judges":

Victor D. Quintanilla, Critical Race Empiricism: A New Means To Measure Civil Procedure, 3 UC Irvine L. Rev. 187, 189 (2013)("... White and Black judges decided these claims differently. White judges were much more likely to dismiss the claims of stereotyped-group members, even after controlling for political ideology.")

Jill D. Weinberg, Laura Beth Nielsend, Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking, 85 S. Cal. L. Rev. 313, 351 (2012)("we found that minority judges tend to assess discrimination claims differently than white judges.")

Pat K. Chew, Robert E Kelley, Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117 (2009)("African American judges rule differently than White judges, even when one takes into account their political affiliation or certain characteristics of the case.")

This kind of scholarship goes back decades.

Susan Welch et al., Do Black Judges Make a Difference?, 32 Am. J. Pol. Sci. 126, 134 (1988) (arguing that criminal sentencing is performed differently by white and black judges)

Are all of these professors' allegations of white bias then racist because they make a claim about white judges' general incapacity to be impartial on the basis of their race?

Beyond these sorts of generic claims about white judges' bias in law journals, we are all used to the media and politicians calling into question the decisions of white judges and white juries on the basis of their race in close cases involving African-Americans. Given this climate, Obama even felt it necessary to apologize for the race of his own recent Supreme Court nominee, whom he noted was “a white guy, but he’s a really outstanding jurist.” Similarly, now Justice Sotomayor promoted her non-white ethnicity as a positive qualification for judicial office, claiming that “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.” Media judgment: no racism.

[This wasn't an unconsidered or stray thought of Justice Sotomayor, but part of a general denial of racial impartiality. She doesn't believe that there is unbiased position to which we can attain. She says "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging. ... I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others." Again, she says "Whether born from experience or inherent physiological or cultural differences [Sotomayor had suggested earlier that her "Latina soul" was not the result of mere difference of experience], a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. [A wise man and a wise woman will not reach the same conclusion in deciding a case because] ... there can never be a universal definition of wise."]

Beyond judges, we see special scrutiny in cases where white policemen and white citizens are involved in shootings of persons of another race. Think about the coverage and political treatment of the shootings of Michael Brown by a white policeman or of Trayvon Martin by a "white" (later "Hispanic" or "White Hispanic" or "Afro-Peruvian-German-American") citizen. These shootings received significant coverage, implying that racial bias motivated the shootings -- though this was later unproven before juries and in the Michael Brown cases, concluded to be wrong in a Justice Department investigation -- rather than self defense as claimed by the defendants and supported by strong physical evidence of assault.

The implication of bias was based on the respective races of those involved where the contexts raised purported questions about the motivation of the decisions to use force. Were these examples of "textbook racism" because they drew into doubt the impartiality of a white policeman and citizen involved on the basis of race? If an implication of bias on the basis of white race was not intended, why was the race of the policeman and citizen (even mistakenly) emphasized so much?

Christians are necessarily opposed to racism, i.e., not loving someone on the basis of their race, or denying that all races are united through faith in Jesus Christ, because of the universal duty of love and the universality of Christ's kingdom. But does that mean that we are also opposed to allegations, investigations or beliefs that individual members of one race or such groups generally, e.g., whites, tend to be biased against members of another race, e.g., African-Americans, or vice versa? This seems to me a commonplace of modern political rhetoric.

Is it racial prejudice to believe that there is white prejudice against those of other races or a general tendency of whites to favor whites? What if we added the claim that, in general, all races naturally are predisposed to favor their own race or ethnicity or nation and disfavor others? This seems to me a perfectly commonplace observation. Does the universality and equality of this claim wash its racism away?

As former Attorney General Alberto Gonzales has pointed out there are many other factors to consider in determining the reasonableness of Trump's concern about the judge in his case, including the judge's membership in a La Raza group (which is an interesting example of an ethnic group's tendency to show special concern and favor for members of their own ethnicity), and his appointment of lawyers who have given $675,000 to Hillary and Bill Clinton in speaking fees to represent the class suing Trump.

But I am interested mainly in the response of Christians who have argued that it was un-Christian and racist per se for Trump to call into question the judge's bias in part on the basis of his ethnicity regardless of the context that Gonzales pointed out. If that's true, Christians have been going about things in the wrong way for a long time because Christians, like Moses before, have long been warning that we need to take special cognizance of the tendency of one ethnic group to mistreat another, e.g., Le 19:34.

More broadly, this belief has long affected our theories of political legitimacy and international order. The rise of the nation-state, and the nineteenth and twentieth-century idea of the human right of a people of one ethnicity to rule themselves, replacing the widespread belief in the legitimacy of multi-ethnic empires (think the Austro-Hungarian Empire, which was a kind of paleo-E.U. or modern multi-cultural U.S., with lots of ethnicities in many political subdivisions held together by a law and army), grew out of concerns about the difficulty of managing ethnic divides and allegations of bias. The subjects of multi-ethnic empires, with experience, came to doubt the possibility of multi-ethnic empires impartially administering justice among national groups and demanded the right to rule themselves as a human right, seeking successfully to enshrine the right to national self-determination in international law.

In his famous 1918 "Self-determination" speech, rebuffing Autro-Hungarian and German peace proposals, President Wilson justified the U.S.'s war against the Central Powers in the First World War in part on the idea that world peace required breaking up multi-ethnic empires, including the Austro-Hungarian and Ottoman, to respect "the natural connections, the racial aspirations, the security, and the peace of mind of the peoples involved." He concluded that to respect national aspiration required national independence and separation. "National aspirations must be respected; peoples may now be dominated and governed only by their own consent. 'Self-determination' is not a mere phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their peril." Thus, Wilson argued that the "indisputably Polish peoples who lie contiguous to one another" must be given the ability to rule themselves, not to be treated fairly according to universalistic principles within a German empire.

This idea has its own Christian roots, first, in the presentation of God's providential provision of national self-rule for the Israelites as a great blessing, a fulfillment of the promise to Abraham and necessary given the lessons of oppression at the hands of foreigners. The loss of that independent national self-rule in the Babylonian Captivity was the ultimate punishment for Israel's sins.

Second, the goal of national self-rule is depicted normatively in the Mosaic command: "De 17:15 ... be sure to appoint over you the king the LORD your God chooses. He must be from among your own brothers. Do not place a foreigner over you, one who is not a brother Israelite." God obviously did not command this because foreigners were unequal to Israelites as men. Those seeking to understand this command related it immediately to the needs of effective and just political order, i.e. foreign rulers would be biased, in addition to the prophetic promise of Christ's kingship. What is the equity of this command today? Is it reflected in calls that police forces and political representatives should reflect the ethnic identity of the people they govern? Does it impact, contra Luther, a Christians duty to elect co-religionists to political office?

I grew up in a culture that was optimistic about the possibility of racially neutral administration of law. By vocation, my mind is focused on the great and neutral power of objective legal rules to determine disputed questions. But I was educated in a culture that insisted, just as Justice Sotomayor argues, on the impossibility of race neutrality (in addition to sex, class, and religion). This insistence, I must concede, is more in keeping with the Wilsonian principles against multi-ethnic empire and the Mosaic laws warning against the tendency toward ethnic impartiality and commanding ethnic self-rule. But, though skepticism about racial impartiality is rampant, we of the United States, because of the U.S. Civil War, are at the same time fiercely opposed to the idea that this requires ethnic or national separation or even allows, because of twentieth-century mass immigration, consideration of cultural, ethnic, or religious homogeneity as positive value in a state. On the whole, though I feel the contending tendencies produced in me by my culture, education and national history, I lean toward insisting on the possibilities of overcoming ethnic bias.

Nevertheless, the attacks on Trump's inclusion of the judge's ethnicity in his argument about partiality still seems fairly hypocritical to me today since we live in a culture that continues to cultivate general skepticism about the possibility of racial neutrality generally in the administration of justice or policing. The Obama administration, which has joined in the attacks on Trump, even forced an Iranian immigration judge to recuse herself from case involving Iranians if she choose to participate in the work of an association promoting Iranian interests (much like the judge's membership in a La Raza organization). Having remade the country culturally based on skepticism about racial neutrality, it seems too late to deny the right to assert it to all comers.

But the observation of hypocrisy aside, we must choose at some point how we will proceed: either the impossibility or extreme difficulty of impartial justice in multi-ethnic societies creates prudential grounds for ethnic political division (as we certainly still conclude in some international cases, such as Kosovo, and as the upcoming Brexit might underscore), or we must affirm that in general people of ordinary character have the ability to overcome such tendencies.  

It reminds me of a similar problem in the early church:

Ac 6:1 In those days when the number of disciples was increasing, the Grecian Jews among them complained against the Hebraic Jews because their widows were being overlooked in the daily distribution of food. 2 So the Twelve gathered all the disciples together and said, "It would not be right for us to neglect the ministry of the word of God in order to wait on tables. 3 Brothers, choose seven men from among you who are known to be full of the Spirit and wisdom. We will turn this responsibility over to them 4 and will give our attention to prayer and the ministry of the word." 5 This proposal pleased the whole group. They chose Stephen, a man full of faith and of the Holy Spirit; also Philip, Procorus, Nicanor, Timon, Parmenas, and Nicolas from Antioch, a convert to Judaism.

I see three relevant things in this Scripture. First, there is the complaint about ethnic bias leading to distributive injustice between the ethnic groups. Second, there is the recognition that the solution requires leaders "full of Spirit and wisdom." Third, the deacons chosen included at least one ethnic Greek, rather than a Hellenized, i.e. Greek-speaking, Jew.

Is there, what we might call, an Augstinian concession to the inevitable sinful character we should expect in the church as we sojourn in the City of Man, with the wheat and tares still mixed? That is, even if we seek men of Spirit and wisdom, we should plan for a certain amount of sin, in this case of ethnic partiality, and work against it by giving a gentile Greek a role in the distribution? If this is true for the church, presumably it is even more true for a society that does not seek men of Spirit and wisdom, but generally selects judges based on educational, political and social attainments which are scarcely correlated with Spirit and wisdom. In the end, I don't think the passage will support this interpretation as a norm, but it is an interesting fact in the story. More broadly, it's not clear to me from Acts and Paul's Epistles that that the church ever worked out anything like a mechanical solution to this problem, i.e., a rule or canon for dealing with problems of bias arising from ethnic diversity. The Apostles' charge is the only ultimate solution: find men of Spirit and wisdom.