By now, pretty much everyone know about Donald Trump‘s specious argument that Gonzalo Curiel, a federal judge overseeing a suit for fraud against Trump University, is automatically biased simply for having Mexican parents. Other Republicans have recoiled in horror at Trump’s repeated attacks (although they are still voting for him). Even conservative legal scholars, not know for their racial sensitivity, condemn them.
“If that’s the new standard for recusal, every judge in the federal judiciary who has some ethnicity or religion or race that affects a case has to recuse,” Josh Blackman, a law professor at the South Texas College of Law, told the Associated Press.
All of which is well and good, but not that long ago, a lot of conservatives happily bought into the same bigoted reasoning against a different federal judge. The reason: because the judge was gay.
Vaughn Walker oversaw the challenge to California’s Proposition 8, California’s voter initiative on same-sex marriages. Walker wasn’t out at the time, but that didn’t stop anti-marriage forces from arguing that he could never be impartial because he would put being gay ahead of the rule of law.
For example, John Eastman, who is a lawyer and was on the board of the National Organization for Marriage, insisted that Walker had to recuse himself because he stood to benefit, including financially, from a pro-marriage ruling. In fact, the argument by anti-marriage forces to overturn Walker’s ruling hinged on the judge’s sexual orientation.
At the time, a long list of observers called the attacks out for what they were: homophobia. It’s worth remembering (and reminding Trump) what another federal judge said in reviewing the request to throw on Walker’s ruling on the grounds that being gay disqualified him.
“The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification,” Judge James Ware wrote in dismissing the request. “Further, it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.”
But it turns out that the attacks on Walker were just one point on the bigotry spectrum. As Trump has revealed, it’s a short hop to declaring that ethnic background or religion disqualifies a judge–assuming the ethnic background is non-white and the religion is Islam.
And a short hop back, too. Courts operate on the assumption that judges put the law above all else. Trump is arguing that personal interests matter more, probably because that’s how he views his universe. But in attacking Curiel, Trump paved the way for much broader assaults on the impartiality of judges based solely on who they are. It’s not hard to see how the antigay right would love to make that argument—again.