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America's Challenge

US trial lawyer Reuben Guttman considers the challenge that Donald Trump's rhetoric and those who support it pose to American society.

Leonard Zhukovsky

The year 2016 is a period of paradox. The first black man to occupy the Oval Office is finishing his second term unscathed by scandal and with an approval rating hardly showing the battle scars of eight years in the White House. For the first time ever, a major political party has nominated a woman - Hillary Clinton - to run for President. Not since 1984 - when Geraldine Ferraro was nominated by the Democrats to run for Vice President - has a woman served on a national ticket and that was the first and only other time.

By some appearances, racial and gender barriers are being broken and – to paraphrase Dr King – perhaps that time has come when people are no longer judged by the colour of their skin, nationality, or gender.

Not so fast.

America's prison system is disproportionately packed with black and Hispanic inmates, many of whom are locked up for drug or other offenses that merit medical or psychiatric treatment and not incarceration. The American education system has not fully retooled to train the economically disadvantaged for a high tech economy staffed by those who punch a computer keyboard as opposed to a factory time clock. And some of the very technology now at the backbone of our economy has allowed average citizens to document – in real time – the physical violence at the edges of the racial, religious and ethnic tension that is stressing the fabric of the democracy. And of course, with the mere entry of word searches, anyone can visit Internet sites to confirm the existence of hate groups.

And now, the Republican Party has nominated a candidate, Donald Trump, whose stereotyping of, and policies with regard to, Muslims and Mexican Americans has – at the very least – emboldened those who refuse to accept or understand the constitutional doctrine of equal protection.

Mr Trump has even challenged the integrity of the very democracy and voting process that led to his nomination; he now suggests that the general election may be ‘rigged.’ His refusal to accept the decisions of a democratic rule of law is not confined to claims about the electoral process. Speakers selected by him at the Republican Convention have incited calls for Secretary Clinton to be ‘locked up.’ He even entreated the Russians to hack into her email system.

None of this is acceptable and yet too many leaders of the Republican Party are unwilling to denounce a man who himself has had no trouble denouncing them, while steering clear of denouncing the hate group members who have become emboldened by his words and whose votes undoubtedly secured his nomination in a crowded field of candidates.

Indeed, several weeks ago, using my Twitter account, I raised the question of why Mr Trump had no trouble denouncing Senator Ted Cruz, while not clearly denouncing a Ku Klux Klan leader who had vocally supported his candidacy. It took no more than a few minutes for members of hate groups to let me know that a half century after the passage of the Civil Rights Act, there remains an underbelly of America festering with racism and antisemitism. It is the type of hatred that is undoubtedly hostile to the very multicultural American mind that gave rise to the high tech branded products that are now found around the globe.

Make America Great again? It is true that the American economy is no longer supported by factories and mills. We now export intellectual property branded with names like Apple, Microsoft, Amazon, Facebook and Google that are known worldwide and are all about facilitating the flow of ideas and information that we hold so dear under the First Amendment. Of course, Mr Trump must know this. And so the slogan, "Make America Great Again" can only be taken as his dog whistle to summon those to the voting booths who yearn for a return of the unwelcoming America of yesteryear.

And so the 2016 presidential election is no longer about just a political race. It’s hard reckoning in which rules of law that have broken down barriers and created level playing fields for countless Americans are threatened. It is reckoning that even if these rules are not re-written, there is still a not so silent group of people who remain uncommitted to and will indeed resist their implementation. This is a serious challenge for not only the nation but for its judges who must now understand and appreciate that claims of discrimination, based on even subtle signs of discrimination, must be given the deepest consideration.

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

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10 August 2016

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