African American Policy ForumVarmennettu tili

In the early days of the Trump administration, Dems on the Senate Judiciary Committee began asking Trump appointees whether they thought Roe v. Wade was correctly decided. These judges, not wanting to admit that they didn't agree with Roe v. Wade, would dodge the question.

The most common way for Trump's radical nominees to dodge the question was for them to give a response along the lines of "I can't comment on that case, as that issue (abortion) might come before me as a judge." They framed their evasiveness as an attempt to remain impartial.

Sen. Blumenthal came up with a clever way around this conundrum of Trump nominees refusing to comment on whether they agreed with or would uphold Roe v. Wade. He would start by asking them if they supported Brown v. Board, the landmark case that outlawed segregation in schools.

His strategy made sense - what self-respecting judicial nominee would say they thought the Supreme Court case that ended "separate but equal" was wrong? Once they said "of course Brown v. Board was correct," Blumenthal would then ask if they also thought Roe v. Wade was correct.

Having just commented on the correctness on one landmark court case, it would appear particularly disingenuous when that same nominee only moments later gave a mealy mouthed response about not being able to comment on Roe v. Wade because they may have to decide abortion issues.

It's worth noting, that prior to the Trump administration, judicial nominees, including Supreme Court nominees just as Chief Justice Roberts had no problem affirming that Brown v. Board was correctly decided and deserved the utmost respect as binding precedent.

So Sen. Blumenthal put his plan to question nominees into practice. The results were... unexpected. Rather than indicating their agreement with Brown v. Board an then getting tripped when asked about Roe v. Wade, nominees just flat out refused to say Brown v. Board was correct.

Before going over some of the responses from Trump's radical nominees, it's worth reflecting on just how extreme a position this is. If Brown wasn't correctly decided that means there's no legal impediment to complete segregation. Separate schools for white and Black students.

The first Trump nominee to face this question was Wendy Vitter, who Trump nominated to a federal district court in Louisiana. She responded by saying she didn't want to be coy but couldn't answer the question of whether Brown was correctly decided. The Senate confirmed her 52-45

Only two weeks later, in April 2018, Andrew Oldham, who Trump nominated to the Fifth Circuit Court of Appeals told the Judiciary Committee that as a judicial nominee he couldn't (i.e. wouldn't) comment on the merits of any case, including Brown. The Senate confirmed him 50-49.

When it became apparent that Trump's radical judges would flat out refuse to state that Brown v. Board was correctly decided and should remain the law of the land, Senator Booker began asking that question in his written questionnaire to nominees. The results were horrifying.

Over the following year, dozens of Trump judges refused to answer the question, either when asked it during a hearing or in response to Sen. Booker's written questionnaire.

Some Trump nominees said that Brown v. Board was "a landmark decision." Others described it as "correcting a wrong." For the most part, however, they simply refused to answer the question saying that it would be inappropriate for them to comment on it.

Some of the answers were downright glib. Tom Kleeh, who was nominated to a federal court in W. Virginia, refused to say that Brown v. Board was correctly decided, instead saying "I really cant offer a grade or a thumbs up or a thumbs down on the decision." He was confirmed 65-30

Richard Sullivan, who Trump nominated to the Second Circuit Court of Appeals, not only wouldn't say that Brown was correctly decided, he also refused to say that Plessy v. Ferguson was wrongly decided, stating only that it was repudiated by Brown v Board. He was confirmed 79-16.

This practice wasn't limited to Trump judicial nominees. Jeffrey Rosen, who Trump nominated to the the Deputy Attorney General—the number two spot in the Department of Justice—refused to say that Brown v. Board was correctly decided. The Senate confirmed him by a vote of 52-45.

Why does this matter? It's not like any of these district or circuit court judges have the power to overturn Brown v. Board, and they aren't saying they disagree with it, just that they can't comment one way or the other. Still, it's something we should be concerned about.

Brown v. Board marked a turning point in constitutional law. It announced that the Fourteenth Amendment's promise of "equal protection of the laws" was more than a dead letter. Stating that Brown was correctly decided should be the easiest hurdle to a judicial nominee to clear

When nominees refuse to endorse Brown it does not necessarily mean they want an immediate return to separate but equal but it is a sign that they view Brown as a contestable area of law. It means they see civil rights generally as an area of law to be rolled back at will.

In the same way that conservative jurists have spent four decades chipping away at Roe v. Wade, there is the ever present threat that the radical judges Trump and McConnell have packed the courts with may chip away not at the core holding of Brown but at the principle behind it.