Brown v. Board takes center stage at hearing for Trump's judicial nominees

A landmark Supreme Court opinion that bans segregation in public schools took center stage at the Senate Judiciary Co...

Posted: May 18, 2018 4:11 AM
Updated: May 18, 2018 4:11 AM

A landmark Supreme Court opinion that bans segregation in public schools took center stage at the Senate Judiciary Committee on Thursday as senators gathered to discuss two of President Donald Trump's judicial nominees who declined to say in their testimony whether the opinion was correctly decided.

The vote on the nominees is scheduled to occur before the close of business, and it happens to fall on the 64th anniversary of the release of the opinion, Brown v. Board of Education. Leaders of major civil rights organizations were in the audience as the senators debated - at times heatedly - what kinds of questions nominees could be "excused" from answering.

Democrats accused the President of pushing forward nominees who are outside of the mainstream. They pointed out that others - like Chief Justice John Roberts and Justice Anthony Kennedy - both testified in their own confirmation hearings that Brown was correctly decided.

"It's an easy question," ranking member Dianne Feinstein said.

"What does it say about a nominee" that could not say "clearly and unambiguously" that Brown v. Board of Education was correctly decided? she asked.

RELATED: Trump judicial nominee refuses to say if landmark civil rights opinion was correctly decided

But Republicans suggested the Democrats are engaged in a ploy meant to smear the names of nominees who were simply following the rules of judicial ethics meant to ensure impartiality.

"I speak for all my colleagues when I say there is no question that this opinion was correctly decided," said Committee Chairman Chuck Grassley, who called it "very unfair and simply inaccurate" to suggest the nominees "somehow disagree with Brown."

Grassley said the nominees should not be forced to label Supreme Court decisions as "correct" or "incorrect" and jeopardize their impartiality.

His colleague Sen. Mike Lee, R-Utah, took the debate a step further saying that it is "disputed nowhere" that Brown is correct. He said to suggest otherwise is "absurd" and "preposterous" and "borders on accusing someone of racism."

Before adjourning without a vote, Democratic Sen. Dick Durbin of Illinois held firm.

"If we can't ask them basic questions about Supreme Court decisions, why are we here?" he asked.

Sen. Kamala Harris, D-California, said she found the testimony "deeply troubling." And Feinstein suggested Democrats are planning, in the future, to do more to push back on the President's nominees.

The dispute comes as the Trump administration continues to break records in the pace of confirming nominees, in order to fulfill the President's stated goal of reshaping the judiciary.

So far, the Senate has confirmed 39 judicial nominees: Neil Gorsuch for the Supreme Court, 21 appeals court nominees and 17 district court judges.

One of the nominees, Wendy Vitter, is up for a seat on the US District Court for the Eastern District of Louisiana.

At her confirmation hearing in April, Sen. Richard Blumenthal, a Connecticut Democrat, asked her about Brown v. Board of Education. Vitter said she didn't mean to be "coy" but that she would 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 went on to say that if she were confirmed, she would be "bound by Supreme Court precedent."

The answer outraged her critics, who noted that Chief Justice John Roberts and Justice Neil Gorsuch had both answered the question during their confirmation hearings.

Vitter serves as the general counsel of the Roman Catholic Archdiocese of New Orleans and is married to Louisiana's former Republican Sen. David Vitter, who was implicated in the sex scandal concerning the so called "DC Madam" back in 2007.

Conservatives are crying foul, arguing Vitter declined to answer the Brown question because she believes that judges should maintain their impartiality by declining to put forward personal opinions on particular cases.

They point to Vitter's testimony later in the hearing, when Sen. John Kennedy, a Louisiana Republican, asked the question a different way.

"I am not asking about precedent," he said. "I just want to know about what you think about the social policy of having schools, Ms. Vitter, segregated by race, even if they are equal. Can we agree that is immoral?"

Vitter said, "Yes."

"As many nominees have done, Vitter simply took the position that it was improper for her to comment on the rightness or wrongness of any particular Supreme Court precedent," said conservative Ed Whelan of the Ethics and Public Policy Center. Whelan says Vitter was avoiding a "slippery slope" of judicial nominees commenting on precedent.

"Sen. Blumenthal has shown that he is eager to race down that slippery slope," Whelan said.

Andrew S. Oldham, who currently serves as general counsel to Texas Gov. Greg Abbott, is a nominee up for a seat on the powerful 5th US Circuit Court of Appeals. He told Blumenthal that "even the most universally accepted Supreme Court case is outside the bounds of a federal judge to comment on."

Oldham went on to say that Brown corrected "an egregious legal error" by overturning the legal policies established in Plessy v. Ferguson back in 1896 and it "abolished segregation in public schools."

But Blumenthal persisted on Brown, asking: "Was it correctly decided in terms of what you know?"

Oldham held firm and noted that Justice Ruth Bader Ginsburg also believed a nominee should not talk about precedent:

"The canons of conduct and the line that was articulated by Justice Ginsburg when she sat in this chair before this committee, where she said that her role as a nominee was to give 'no hints, no previews and no forecasts,' applies just as much to me."

"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 III of the Constitution on its head," he said.

After a pause, Blumenthal responded, "I can't believe that you just gave me that answer."

Oldham's critics note that Ginsburg supplied the committee with thousands of pages of her writings as a law teacher and lawyer and opinions from her time on the US Court of Appeals for the District of Columbia Circuit.

"Oldham, on the other hand, has spent his comparatively short career fighting legal rights and protections for everyday Americans," said critic Nan Aron of the progressive Alliance for Justice.

At 39 years old, Oldham, a former clerk to Justice Samuel Alito, could serve on the bench for dozens and dozens of years.

Carrie Severino of the conservative Judicial Crisis Network believes the Democrats are lashing out in response to Trump's judicial success.

"Democrats know exactly what the standard is at confirmation hearings, that nominees can't comment on cases likely to come before them," she said.

"Justice Ginsburg famously refused to answer multiple questions, as did Justice Gorsuch, and even the late Justice Scalia refused to answer questions about the Marbury v. Madison decision that established judicial review, " she said.

Republicans like Severino praise Senate Majority Leader Mitch McConnell for his role in pushing through judicial nominees.

The Kentucky Republican tweeted on Tuesday the Senate had confirmed the President's 21st appellate court nominee and called the action "a monumental achievement of unified Republican government."

Christopher Kang, who serves as chief counsel for a liberal group called Demand Justice, believes McConnell is changing the rules and traditions in the Senate and that all of Trump's nominees should be opposed. There has been a dispute, for instance, over whether nominations should go forward without the approval of both of the nominee's home state senators.

"These are lifetime appointees, and Democrats need to stop treating this as business as usual, "he said.

But Grassley -- the chair of the Judiciary Committee -- is showing no signs of slowing down.

In a recent interview with talk show host Hugh Hewitt, Grassley outlined his plans for the coming months. He noted there are still about 30 district court judicial nominations he wants to push through.

"I have pleaded with McConnell to work nights, to work Saturdays and weekends, and put the pressure on the Democrats," Grassley said.

"We've got to have every Republican around and even cancel a recess so we can clear the calendar of these important nominees," he said.

West Lafayette
Overcast
43° wxIcon
Hi: 46° Lo: 34°
Feels Like: 40°
Kokomo
Overcast
41° wxIcon
Hi: 45° Lo: 33°
Feels Like: 37°
Rensselaer
Overcast
37° wxIcon
Hi: 40° Lo: 29°
Feels Like: 37°
Fowler
Overcast
37° wxIcon
Hi: 40° Lo: 31°
Feels Like: 37°
Williamsport
Overcast
38° wxIcon
Hi: 44° Lo: 34°
Feels Like: 34°
Crawfordsville
Overcast
43° wxIcon
Hi: 47° Lo: 36°
Feels Like: 40°
Frankfort
Overcast
43° wxIcon
Hi: 47° Lo: 35°
Feels Like: 40°
Delphi
Overcast
43° wxIcon
Hi: 45° Lo: 33°
Feels Like: 40°
Monticello
Overcast
39° wxIcon
Hi: 44° Lo: 31°
Feels Like: 39°
Logansport
Overcast
39° wxIcon
Hi: 44° Lo: 31°
Feels Like: 39°
Chilly and cloudy Tuesday
WLFI Radar
WLFI Temps
WLFI Planner

Indiana Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 164581

Reported Deaths: 4143
CountyConfirmedDeaths
Marion26055792
Lake14436358
St. Joseph9606168
Elkhart9271138
Allen8647231
Hamilton6400115
Vanderburgh617162
Tippecanoe396715
Porter347550
Hendricks3418134
Monroe335638
Johnson3286130
Delaware311575
Clark306263
Vigo275340
Madison250896
LaPorte239261
Cass229724
Warrick205065
Kosciusko201127
Floyd187468
Howard169466
Bartholomew147958
Marshall147428
Dubois146426
Wayne142031
Grant133539
Henry133030
Boone129150
Hancock124744
Noble122935
Jackson121018
Dearborn103128
Morgan100340
Lawrence96838
Gibson94412
Clinton92416
Daviess92334
Shelby90632
LaGrange82815
Knox81810
Harrison81024
Posey7767
Putnam77616
Fayette76719
DeKalb76011
Jasper6885
Miami6715
Steuben6608
Montgomery63122
White62316
Greene57838
Adams5607
Scott55413
Decatur52839
Ripley4838
Whitley4836
Clay4617
Sullivan45714
Wells45611
Huntington4455
Starke4438
Wabash4439
Orange42425
Spencer4176
Randolph39210
Jennings38713
Washington3873
Franklin38325
Fulton3785
Perry36914
Jefferson3655
Pike35718
Carroll34313
Jay3386
Fountain3293
Tipton28423
Vermillion2721
Parke2564
Rush2464
Blackford2394
Newton23711
Owen2151
Martin2050
Pulaski1783
Crawford1631
Brown1473
Ohio1337
Union1140
Benton1130
Switzerland980
Warren911
Unassigned0236

COVID-19 Important links and resources

As the spread of COVID-19, or as it's more commonly known as the coronavirus continues, this page will serve as your one-stop for the resources you need to stay informed and to keep you and your family safe. CLICK HERE

Closings related to the prevention of the COVID-19 can be found on our Closings page.

Community Events