R: NAACP chief counsel Thurgood Marshall outside the Supreme Court before going to hear of his latest success in the drive for desegregation
R: Photo by Hank Walker/Getty; L: Photo by George Tames/The New York TImes/Redux

65 years later, Trump nominees balk at Brown v Board questions

It was exactly 65 years ago today that the U.S. Supreme Court issued a unanimous, landmark ruling in Brown v. Board of Education, striking down school segregation, and making clear that “separate but equal” is inherently unequal. It was one of the most important judicial rulings in American history.

More recently, however, Donald Trump judicial nominees have been reluctant to say whether the justices got it right.

As regular readers may recall, the first sign of trouble came a year ago, when Wendy Vitter, one of the president’s choices for the federal bench, was asked by Sen. Richard Blumenthal (D-Conn.) whether Brown was “correctly decided.” She didn’t want to give a definitive answer. Andrew Oldham, a Trump nominee for the Fifth Circuit of Appeals, was asked the same question and answered the same way.

The Republicans’ Senate majority seemed unfazed, narrowly confirming Oldham last year, and doing the same with Vitter’s nomination this week. But as Laura Meckler and Robert Barnes noted in a new piece for the Washington Post, this has quickly become an unexpected norm.

For months, a Democratic senator has been asking Trump judicial nominees what appears to be a straightforward question: Was Brown v. Board of Education, the landmark decision that ended legalized school segregation, properly decided?

Legal scholars across the ideological spectrum say the answer is clearly yes. Still, more than two dozen nominees have declined to answer the question at a time when many schools remain segregated by race.

Circling back to our earlier coverage, I can appreciate at some level why would-be jurists want to convey their impartiality, especially during Senate confirmation hearings. One never knows what kind of cases might arise in his or her courtroom, so judicial nominees tend to be understandably cautious about taking sides on controversial issues.

Except in 2019, there’s no reason to see state-sanctioned segregation as a controversial issue.

During his Supreme Court confirmation hearings in 2006, for example, Samuel Alito described the Brown ruling as “one of the greatest, if not the single greatest thing that the Supreme Court of the United States has ever done.” Last year, Neil Gorsuch called it a “seminal decision that got the original understanding of the 14th Amendment right.”

As Perry Grossman and Dahlia Lithwick explained a while back in Slate, “This was an uncontroversial proposition for nominees for 60 some years, and even judges who might grumble in private about Brown’s originalist flaws or its methodology didn’t feel the need to perform their doubts before the Senate Judiciary Committee. Until now.”

If nominees refuse to give their views about whether Brown was correctly decided, will they also refuse to give their views on Dred Scott, which refuted the very humanity of black Americans? What about the internment of Japanese Americans, which the court held lawful in Korematsu but has since been recognized as one of the most shameful moments in American political or legal history? […]

Basic ideas about equality and race are slipping out of the canon of universally accepted legal truths. That shouldn’t be met with silence.

The fact that Senate Republicans don’t seem to care doesn’t make this right.