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Why Some Judicial Nominees Struggle When Asked About 'Brown v. Board of Education'

[caption id="attachment_5229" align="alignnone" width="620"] U.S. Supreme Court. Credit: Diego M. Radzinschi / ALM [/caption] Judicial nominee Wendy Vitter fell into a well-trodden trap on Wednesday when a U.S. senator asked if she believed that the landmark desegregation ruling Brown v. Board of Education was correctly decided. "I don't mean to be coy," said Vitter, nominated by President Donald Trump for a seat on the U.S. District Court for the Eastern District of Louisiana. “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." She added that the ruling “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.” But the damage was done, and civil rights groups were unforgiving: [falcon-embed src="embed_1"] Vitter, general counsel to the Roman Catholic Archdiocese of New Orleans, is not the only judicial nominee to draw criticism when asked about Brown and other landmark decisions. For some nominees, the concern is that by answering explicitly, they would be viewed as biased if a case challenging the precedent came before them—even when that is highly unlikely. In 1986, the late Justice Antonin Scalia went so far as to say during his confirmation hearing, "I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison." For others, the decisions they are being asked to embrace are too controversial to touch. Roe v. Wade, the 1973 ruling declaring the right to abortions, is one such decision, especially because abortion-related litigation and legislation persists. Brown is also criticized by some who argue that it does not square with the original meaning of the Constitution. At a Senate hearing last month, Sixth Circuit nominee John Nalbandian agreed Brown was correctly decided, according to the Vetting Room blog. But when asked moments later about Roe, Nalbandian changed his tune: “I’m reluctant, and I think it would be inappropriate for me to go down a list of Supreme Court cases and say I think this case was rightly decided and that case was not, because I think it would call into question my partiality going forward.”

Justice Neil Gorsuch. Credit: Diego M. Radzinschi

Sen. Richard Blumenthal, D-Connecticut, who pressed Vitter about Brown, repeatedly asked Supreme Court nominee Neil Gorsuch about Brown during his confirmation hearing last year. Twice, Gorsuch repeated his reply that Brown was “a correct application of the law of precedent.” A frustrated Blumenthal reminded Gorsuch that Chief Justice John Roberts Jr. in 2005 had told Sen. Edward Kennedy, D-Massachusetts, “I do” when asked if he agreed with Brown. “There’s no daylight here,” Gorsuch answered, intimating—but not quite saying outright—that he was OK with the Brown decision. The late conservative Supreme Court nominee Robert Bork also said he agreed with Brown during his unsuccessful 1987 confirmation hearing, according to Michael Gerhardt, professor at University of North Carolina School of Law, who has advised senators including Blumenthal on confirmation hearings. Gerhardt said that asking nominees about Brown is a legitimate question for discerning “whether there is any space between the nominee as a person and as a judge” when it comes to the issue of race.   Read more: Trump Picks Judges 'He Can Relate To,' McGahn Tells CPAC Covington, McGuireWoods Partners Among New Slate of Judicial Nominees Report: Trump's Judicial Nominees Have Most 'No' Votes So Far Meet Matthew Petersen, DC Court Nom Who Flunked Senator's Pop Quiz Federal Judicial Nominee Flunks 'Motion in Limine' Definition at Senate Hearing