Federal Courts and Nominations

Judicial nominees are changing their approach to the ‘Brown v Board’ question at Senate hearings

When Wendy Vitter sat before the Senate last year as a nominee for a seat on the federal bench, one of her responses triggered outrage from her opponents.

Sen. Richard Blumenthal asked Vitter if she thought Brown v. Board of Education — the landmark opinion from 1954 that struck down school segregation and the “separate but equal” doctrine — was correctly decided.

Vitter, in that exchange, would not answer.

“I don’t mean to be coy,” said Vitter, “but I think I can get into a difficult, difficult area when I start commenting on Supreme Court decisions — which are correctly decided and which I may disagree with. Again my personal, political or religious views I would set aside — that is Supreme Court precedent. It is binding. If I were honored to be confirmed, I would be bound by it and of course, I would uphold it. “

Blumenthal, a Connecticut Democrat, asked again whether she thought Brown, the opinion that effectively overturned Plessy v. Ferguson, the 1896 decision that declared racial segregation was constitutional, was “correctly decided.”

Vitter, up for a seat on the US District Court for the Eastern District of Louisiana, again declined to answer him. Vitter said she didn’t think she should comment on which cases she agreed with for fear of starting down a slippery slope.

“It’s a big deal if someone wants to be a judge, charged with dispensing equal justice for all, can’t commit herself to the basic principle that the Constitution prohibits segregation designed to place a ‘badge of inferiority’ on an entire group of people based on the color of their skin,” said Elizabeth Wydra of the Constitutional Accountability Center at the time.

In follow up written questions submitted after the hearing, Vitter would expand upon her answer. “I do not believe that racial segregation in schools is constitutional,” and she said she abhorred racism. But the impact had been made.

Since then, candidates have grown to expect Blumenthal’s questions and they have tailored their answers to condemn racism, but refrain from commenting on precedent.

Vitter’s supporters say that her intent was correct: A judge shouldn’t allow one’s personal opinions to infect her decisions. They believed that Blumenthal’s true motive was to get Vitter — who served as the General Counsel of the Roman Catholic Archdiocese — to talk about what she thought of Roe v. Wade.

After all, the thinking goes, if she could opine on whether Brown was correctly decided, why not Roe?

An answer to that question that suggests Roe was wrongly decided, and by extension, subject to being overturned, would be the equivalent of kicking a judicial hornet’s nest.

Since the Vitter hearing, Blumenthal has asked other nominees a similar question. And they’ve been ready.

When Andrew S. Oldham appeared after Vitter for a seat on the 5th US Circuit Court of Appeals, Blumenthal struck again.

Oldham was quick to respond.

“Brown corrected an egregious legal error,” he said. “It overruled Plessy v. Ferguson and it abolished segregation in public schools.”

Blumenthal pressed on whether it was correctly decided. Oldham was adamant.

“When inferior court judges come before this committee with a list of cases that they like and a list of cases that they don’t, it turns the structure of Article 3 of the Constitution on its head,” he said. He also cited the fact that Justices Elena Kagan and Ruth Bader Ginsburg had declined to talk about decided cases.

“I can’t believe you gave me that answer,” Blumenthal said.

But perhaps no nominee was able to better disarm Blumenthal than Neomi Rao last week.

She’s up to replace Brett Kavanaugh on the powerful US Circuit Court of Appeals for the District of Columbia Circuit. She, too, declined to answer Blumenthal’s question. But she was ready to condemn segregation out of the gate.

“Brown is a really important precedent of the Supreme Court, and one that overturned Plessy v. Ferguson, which you know was a real black mark on our history.”

“So you believe it was correctly decided,” Blumenthal pressed.

Again, she said it was “incredibly important decision.” And “longstanding precedent of the Supreme Court.” But she said it was “not appropriate” to comment on the “correctness of particular precedents.”

The senator then asked about other opinions including Roe v. Wade.

She declined to answer.

Blumenthal then referred to her earlier testimony when her parents, Indian Americans, she said had faced discrimination.

“Well, you know I am struck by someone” who has said they had been a victim of discrimination “and yet you’re unwilling to say that Brown v. Board of Education was correctly decided?” he said.

She held firm.

“So it could be overruled, too? Blumenthal asked.

Now Rao was stern: “Senator, it’s hard for me to imagine a circumstance in which Brown v. Board would be overruled by the Supreme Court.”

Rao came under controversy for other reasons. Democrats pressed her on commentary she had written about date rape in her twenties. But her failure to answer the Brown question did not make headlines.

Jonathan H. Adler, a law professor at Case Western Reserve University School of Law, who supports Rao, says that Blumenthal’s tactic is to try to get nominees to reveal their views on current issues, like abortion or religious liberty, without asking them the questions directly.

“So the current trick, is to ask a nominee to voice an opinion on a well-settled and uncontroversial decision, such as Brown v. Board of Education, hoping that if they answer that question, they will have a harder time refusing to answer questions about more controversial cases, such as Roe v. Wade or Citizens United,” he said.

As for Vitter, the Senate Judiciary Committee voted Thursday to advance her nomination to the full Senate.

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