Even Americans who know very little about politics or the Supreme Court often know about Brown v. Board of Education. It’s one of the seminal cases in U.S. history, and we learn in school that this was the case that ended the practice of school segregation. Controversial at the time, it’s now recognized almost universally as one of our most important moments in the evolution of civil rights. Today, in 2019, it’s totally uncontroversial…
...unless you happen to be one of Trump’s judicial nominees. As Stephanie Mencimer at Mother Jones pointed out, at least ten different federal court nominees have sidestepped or outright refused to comment when directly questioned on Brown by the Senate Judiciary Committee. All of them gave evasive answers about the difficulty in commenting on past decisions, but it’s important to note that judges from both sides of the political aisle have never had a problem doing exactly that:
Until Trump took office, refusing to endorse Brown as a judicial nominee would have been unthinkable. Both of former President George W. Bush’s Supreme Court appointees, Chief Justice John Roberts and archconservative Justice Samuel Alito, had no trouble answering the question in the affirmative during their confirmation hearings, nor did Justice Elena Kagan when she was nominated to the court by former President Barack Obama. But times have changed.
Even Antonin Scalia found a way to give Brown the nod! So did Brett Kavanaugh—he called it “inspirational”! By comparison, listen to the answer provided by Neomi Rao, a Trump DC Circuit Court of Appeals nominee, when questioned by Sen. Richard Blumenthal:
“As a judicial nominee, I think it’s not appropriate for me to comment on the correctness of particular precedents.”
Here’s Wendy Vitter, a Louisiana District Court nominee (and wife of a Republican Senator):
“I don’t mean to be coy, but I think I get into a difficult, difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with.”
If we were talking about one or two anomalous examples, this might be a non-story. But the fact that ten nominees have hedged, out of about 30 who have been asked, is an eyebrow-raiser. Is this a prelude to an attack on Brown? Were they simply unprepared? Mencimer offers this:
The nearly identical responses from several nominees on the Brown question suggests that they might have been coached by administration lawyers to respond this way.
In the worst-case scenario, this portends something ugly in the battle to preserve the Brown ruling. At best, though, it says an awful lot about the character of these nominees—if they can’t even validate one of the most moral, landmark decisions in Supreme Court history, it raises some worrisome questions about what sort of legacy they’ll craft when they take the bench.