Questions on ‘Brown v. Board of Education’ Often a ‘Catch 22' for Judicial Nominees

By Mark Walsh — April 13, 2018 4 min read
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Who could hesitate to agree that one of the most famous U.S. Supreme Court decisions in history was correctly decided?

It turns out that Brown v. Board of Education of Topeka, Kan., the court’s landmark 1954 ruling that the legal segregation of students by race violated the U.S. Constitution, has proved nettlesome for federal judicial nominees for years.

The latest example: Wendy Vitter, a nominee of President Donald Trump for a federal district judgeship in Louisiana, this week attracted widespread news coverage when she refused to say at her confirmation hearing whether she believed Brown had been correctly decided.

“Senator, I don’t mean to be coy, but I think I get into a difficult area when I start commenting on Supreme Court decisions, which are correctly decided, and which I may disagree with,” Vitter told Sen. Richard Blumenthal, D-Conn., during the April 11 hearing before the Senate Judiciary Committee. “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 pressed Vitter, the general counsel of the Roman Catholic Archdiocese of New Orleans, but she stood by her refusal to answer. “If I start commenting on, ‘I agree with this case or don’t agree with that case,’ I think we get into a slippery slope,” she said.

Vitter’s response drew raised eyebrows and criticism from many quarters, including from CNN political commentator Keith Boykin, who tweeted: “How can you be a federal judge and not state whether you agree with [... Brown ...]? Wendy Vitter is unfit for the federal bench.”

Blumenthal has raised the same question about Brown with other judicial nominees, including just over a year ago with then-Supreme Court nominee Neil M. Gorsuch, who quickly said that Brown “corrected an erroneous decision” of the court—the 1896 ruling in Plessy v. Ferguson that upheld “separate but equal” facilities for African-Americans.

When Gorsuch appeared to hesitate to say whether he agreed with the result in Brown, Blumenthal pressed him by noting that now-Chief Justice John G. Roberts Jr., in his 2005 confirmation hearing, had stated his agreement with the outcome in Brown without hesitation.

Gorsuch replied that Brown “was a seminal decision that got the original understanding of the 14th Amendment right, and corrected one of the most deeply erroneous interpretations of law in Supreme Court history, Plessy v. Ferguson, which is a dark, dark stain on our court’s history,” Gorsuch said.

“Respectfully, I don’t see any daylight between what I’ve just said and what you quoted from [Roberts],” Gorsuch told Blumenthal. “We’re all on the same page on Brown v. Board of Education, senator. It was a great and important decision.”

There are several things going on with the questions about Brown.

As Blumenthal has made clear, the question about the 64-year-old desegregation decision is designed to get nominees to indicate there is something they can agree the Supreme Court got right when those nominees are so reticent to answer similar questions about more recent landmark rulings, such as the one upholding the right to get an abortion in the court’s 1973 decision in Roe v. Wade.

Legal blogger Harsh Voruganti wrote after the Vitter incident this week that asking whether Brown was correctly decided “is a cleverly worded Catch-22.”

“Answer in the affirmative and you’re forced into unprincipled verbal gymnastics when the follow-up question about Roe hits,” said the Arlington, Va., lawyer. “Decline to answer out of principle and you’re branded uncooperative or prejudiced.”

He argues that a nominee could respond that if he or she were asked as a private citizen, “I would have happily discussed my respect for the decision and its progeny” but that as a judicial nominee it would be inappropriate to answer.

Another side to discussing Brown is that while the decision is accepted and respected today, there are legal scholars and others who have questioned the legal reasoning and approach of Chief Justice Earl Warren’s opinion for the unanimous court for its focus on the psychological effects of segregation on black schoolchildren, among other criticisms.

One of those critics was Clarence Thomas, who as a civil rights lawyer who served several posts in President Ronald Reagan’s administration during the 1980s wrote essays and delivered speeches that raised questions about the written opinion in Brown.

“The great flaw of Brown,” Thomas wrote in a 1987 article in the Howard Law Journal, “is that it did not rely on Justice [John Marshall] Harlan’s dissent in Plessy, which understood well that the fundamental issue of guidance by the founders’ constitutional principles lay at the heart of the segregation issue.”

“On the contrary,” Thomas continued, “Chief Justice Warren, writing Brown, made sensitivity the paramount issue.”

And in a 1988 speech to the Federalist Society at the University of Virginia law school, Thomas said, “Brown v. Board of Education would have had the strength of the American political system behind it had it relied on Harlan’s arguments, instead of dubious social science.

When Thomas was nominated by President George H.W. Bush in 1991 to succeed the retiring Justice Thurgood Marshall, who had argued on behalf of black schoolchildren in the Brown case, some civil rights groups criticized Thomas’s views on the landmark case.

Thomas was pressed on many matters during his Supreme Court confirmation hearing, and the Brown decision was mentioned in passing. But no senator substantively questioned Thomas about his views on the opinion in Brown.

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A version of this news article first appeared in The School Law Blog.