A number of years ago I, and many other lawyers, took issue with Ed Whelan’s illogical argument for recusing a federal district judge from a same sex marriage case simply because the judge happened to be in a same sex relationship.
Donald Trump has expanded upon Whelan’s group based recusal theory for judges. Trump a few weeks ago demanded recusal of a judge from the Trump University case because the judge happens to be of Mexican heritage. The reason: Trump has said some unkind things about Mexicans.
So what happens if someone is elected president and then says some unkind things about Jews and Catholics? Under the Whelan/Trump group based recusal theory the entire United States Supreme Court must recuse from any case involving the president, presumably including presidential powers cases.
Here is probably the best discussion to date of the connection between Whelan’s position on recusal of the “gay” judge and Donald Trump’s position on recusal of the “Mexican” judge.
Let’s hope that most Americans prefer to live in a country where a judge is a judge, not a “gay” judge or a “Jewish” judge or a “Mexican” judge. Such attacks on an independent judiciary, and insistence that members of some groups are fit to serve as judges in particular cases and others are not fit to serve, was one of the earliest developments that undermined the Weimar Republic in the early 1930’s. Judge Noonan and I devote much of a chapter of our legal ethics casebook to what happened there. It is our responsibility as lawyers to make sure it does not happen here.