In 1954, 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.
With this in mind, it recently came as a surprise when one of Donald Trump’s judicial nominees wouldn’t say whether she believes the case was decided the right way.
During her Senate confirmation hearing on Wednesday, Wendy Vitter, one of President Donald Trump’s judicial nominees, refused to answer a Democratic senator’s questions about whether the landmark Brown v. the Board of Education Supreme Court ruling was correctly decided.
When Sen. Richard Blumenthal (D-CT) on Wednesday asked whether the ruling was “correctly decided,” Vitter – who was nominated for a seat on the U.S. District Court for the Eastern District of Louisiana – dodged the question, saying she didn’t want to comment on any specific rulings. She claimed commenting would open up the door for critiques of her impartiality.
This week, it happened again. Andrew Oldham, a Trump nominee for the Fifth Circuit of Appeals, was asked the same question and answered the same way.
At face value, I can appreciate 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 2018, 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 yesterday 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.
It’s unlikely Senate Republicans will give this much consideration before voting to confirm nominees like these, but that doesn’t make it right.