In 2013, our High Court provided an opinion on whether the ACT could make same-sex marriage legal. It was a particularly contentious decision at the time, but constitutionally there was only really one clear path. I remember how often our Prime Minister at the time – Tony Abbott – pushed for Justice Bell, who is a lesbian, not to hear the case. It was a clear conflict of interest, he said. She’s biased against our case, he said. We’re safeguarding traditional marriage, he said, that’s what you have to understand.
Except he didn’t. (I know it was believable, but it wasn’t true.)
Right now in the States, controversy is swirling around Donald Trump for saying that a judge can’t hear a case involving him for a detailed, legal reason.
(Excluding the part where he isn’t, but that’s neither here nor there.) On the surface, Donald Trump appears to be mounting an extremely racist campaign against an independent member of the judiciary. I don’t think he’s doing that at all.
That’s not to say that the comments themselves aren’t a reflection of hideous racism – they absolutely are. But that’s all that they are – a reflection. A reflection of the worst parts of a society lurking in the corners. There’s more to this than just trying to say that because someone has a certain heritage, they can’t do a job.
The rulings in the Trump University case are not going Donald Trump’s way. Everyday, new information is being unsealed by Judge Curiel, and he has come to the decision to unseal it not because the Donald wants to build a wall, but because that is the legal decision that he has arrived at.
As the presumptive nominee of the Republican Party, Donald Trump has a huge platform from which to plot his moves. He can sit behind a veneer of policy and political gamesmanship in order to disguise true intentions – in this case, he intended to have Judge Curiel recused from the case.
It’s easy if you have such a platform to create controversy that inevitably biases someone against you. Whether or not Judge Curiel cared about the wall before this, some will argue, he likely does now. A number of people will decide that even though Judge Curiel did nothing wrong, he shouldn’t sit on the case anyway – because of Donald Trump’s actions. And that is as dangerous as it is ridiculous. (That’s probably a very good summation of Donald Trump’s whole campaign, actually.)
This glorious chapter in what’s proven to be a carnival funhouse of an election campaign has been an all-out assault on the independence of the judiciary, hidden behind a veneer of racism. Do we want to create a situation where the powerful in the political class can create bias against judges they don’t like, sufficient enough to subvert the whole trial? Make no mistake, this is what Donald Trump is doing. His criticisms have nothing to do with genuine opinions on race and everything to do with the notion that the judge might be construed to be, and I quote:
He is a hater. A hater of Donald Trump.
If this were racism, it would be easy to write off. But do not make the mistake of shoving it into the same pile as the rapists and drug dealers speech, or the blood coming out of her wherever interview, or the time he called someone “my African-American”. This is substantively different: it’s an assault on the independence of the judiciary from a person who wants to be able to decide who the judiciary is.
Not even Tony Abbott on his worst day would suggest that a judge isn’t able to do their job because of a personal characteristic. This is mostly because reasonable people understand that when this election is over, and Donald Trump is not the President, the judiciary will still have to keep doing its job. It cannot do that if powerful people are able to subvert the rule of law by pretending to be racist.