Donald Trump’s controversial comments on the Mexican heritage of a federal judge got little notice when he made them in February, but they generated a firestorm of outrage when he repeated them during a speech in late May.
In one sense, Trump’s latest comments come when the campaign is in a different posture — specifically amid the increased intensity of media coverage now that his rivals have dropped out and he's the presumptive Republican presidential nominee.
But the differing reactions to Trump’s comments about U.S. District Judge Gonzalo Curiel also underscores how the candidates themselves will dictate how big of a role legal issues will play in the presidential campaign. A vacant seat on the Supreme Court, a federal investigation, civil lawsuits and the role of federal judges have already given the campaign an unusually legal overtone.
Trump said in February that Curiel had “tremendous hostility” and was biased toward him in lawsuits against the now defunct Trump University, and that the judge is “Hispanic, which is fine.” New York Attorney General Eric Schneiderman, a Democrat, called the comments “racial demagoguery.” Chris Wallace questioned Trump about it on "Fox News Sunday." But the issue faded.
This week, Republican lawmakers including Senate Majority Leader Mitch McConnell of Kentucky and Speaker Paul D. Ryan of Wisconsin criticized Trump for similar comments about the Indiana-born judge made in late May. Democrats are trying to tie congressional Republicans and candidates to their controversial standard-bearer as a result.
Curiel isn’t a topic of discussion now because of a ruling or some judicial action he took, but “because a presidential candidate has made him a central issue,” said Charles Franklin, a professor at Marquette University Law School who focuses on public opinion polling. “Decisions in a fraud lawsuit in San Diego, especially procedural decisions, don’t rise without help from someone of high prominence.”
Presumptive Democratic nominee Hillary Clinton and her allies are unlikely to stop talking about Trump’s comments, which they have labeled racist. Trump said Tuesday the comments were misconstrued.
Likewise, Trump is unlikely to stop talking about the Federal Bureau of Investigation’s probe into Clinton’s use of a private email server and her handling of classified information while she was secretary of State. Clinton has denied any wrongdoing.
The controversy over Republicans holding vacant a Supreme Court seat has faded into the background as President Barack Obama’s nomination of Merrick Garland appears stalled in the Senate confirmation process. But lawmakers are raising the issue to justify electing Trump to keep a conservative tilt to the high court. Trump took the unusual step of releasing a list of judges in May whom he could appoint to the court, as a way of appeasing conservatives concerned about his potential picks.
And the Supreme Court is about to issue decisions on the controversial topics of abortion and immigration before the end of June, which candidates for president and Senate could make into major issues in the fall campaign.
“I think that as long as either campaign sees it as in their interest to promote these issues, then we will see them stay at relative prominence,” Franklin said.
Trump’s comments show, however, that legal issues rise in the public discussion when they get out of the legal weeds.
The billionaire mogul has talked about evidence in the case, a decision for the judge to not throw out the case, and having Curiel removed from the case. Curiel, an Obama appointee, is overseeing lawsuits against the defunct Trump University from former students who say the school was misleading and want their money back — an accusation that could strike at the heart of Trump’s selling point to voters that he is a savvy businessman.
Those arguments Trump is making depend on knowledge about the case or legal standards, so the public can’t easily form an opinion, said Greg Caldeira, a law professor at Ohio State University who co-authored a study on how much the American people know about the Supreme Court.
The reference to the judge's Mexican heritage cuts through that, however, because “most people who aren’t pro-Trump people intuitively understand having an ethnic background isn’t sufficient to be taken off a case,” Caldeira said.
Rhode Island Democratic Sen. Sheldon Whitehouse echoed that sentiment Tuesday at the Capitol, where Sen. Mark S. Kirk of Illinois — the most vulnerable Republican incumbent — withdrew his endorsement for Trump over his comments about the judge.
“People don’t care what the standard for judicial recusal is, but if I say the standard for judicial recusal is your race or your gender or if you have a disability, that’s something that America’s going to react to,” said Whitehouse, a member of the Senate Judiciary Committee. “Not because it’s a standard for judicial recusal, but because it’s a line that we don’t cross in civilized society.”
Sen. Lindsey Graham of South Carolina, a former Trump rival for the GOP nomination, said the legal issues show “we have a very vibrant legal system independent of politics when both nominees are being sued or under investigation, so that’s the positive spin, that the legal system can go after even the highest, the mightiest of the mighty.”
But he said Trump’s comments crossed the line. “The reason I’m so upset is it does step on this concept of separation of powers in the judiciary, it is un-American,” Graham said. “We don’t attack our judges because of their heritage.”
Right-of-center legal scholars voiced strong critiques of Trump’s comments about Curiel and what it might mean for the Republican's respect for the judiciary if he became the president.
“I am speechless. Absolutely, and totally speechless,” Josh Blackman, a law professor at the South Texas College of Law in Houston, wrote about Trump’s comments from May. “I cringe to think what will happen when the Supreme Court rules against him. I repeat everything I said here: Donald Trump is unqualified to be president.”
In an interview, Blackman said he’s equally concerned about a Clinton presidency broadening executive power to implement policies.
“Law professors will have a lot to write about and quite frankly, keep honest,” Blackman said. “I think the extent we can discuss this, it’s important to say executives can’t just waive them off with the flick of a wrist. That these sorts of rules matter.”