Mr. Trump’s claim against Judge Curiel is both baseless and squalid, but some in the chorus of critics are not themselves entirely without fault. ...
After all, suggesting that a judge would allow his ethnic ancestry to govern his rulings is simply unacceptable in America.
Or is it?
Following the death of Justice Antonin Scalia in February, President Obama nominated Judge Merrick Garland to the Supreme Court. When some on the left questioned the nomination of a man in his 60s who is of the Jewish faith, the president conceded that Judge Garland is indeed “a white guy, but he’s a really outstanding jurist.” Note the “but,” which may well have been inserted for the benefit of the questioner, and perhaps in a mild jest, but it is nonetheless there, whether meant to represent the president’s values or those of his interlocutor.
Before her 2009 elevation to the Supreme Court, Justice Sonia Sotomayor once gave a speech saying that she hoped “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.” The president who appointed her said he was seeking judges who have “empathy” with those who appear before them.
Such pronouncements reflect how identity politics have become, increasingly and inappropriately, a part of the conversation surrounding courts and judges.
Whether they know it or not, judges demonstrate symbolically every time they mount the bench that personal considerations have no place in deciding cases. Their black robes are supposed to suggest that judges are all the same ... Donald Trump’s claims may be the dirty underside of what we get when we abandon that aspiration, but they are by no means the whole of it.
--Michael Mukasey, WSJ, on the unintended consequence of insisting that a judge's identity affects his or her judgments