There’s no Supreme Court decision more widely celebrated than Brown v. Board of Education, the unanimous 1954 ruling that abolished school segregation. But this month, when Neomi Rao appeared before the Senate Judiciary Committee for a hearing on her nomination to the DC Circuit Court of Appeals, she refused to say whether she thought the case had been correctly decided.
Asked by Sen. Richard Blumenthal (D-Conn.) whether the court had made the right decision in Brown, Rao replied, “As a judicial nominee, I think it’s not appropriate for me to comment on the correctness of particular precedents.” Blumenthal asked her for a yes or no, but Rao would say only that Brown is “an incredibly important decision of the Supreme Court”—a dodge she twice repeated when pressed further.
In normal times, the moment might have been extraordinary. During the Trump administration, it’s par for the course. Rao is one of at least 10 Trump nominees to the federal courts in the past year who have refused to offer an opinion on Brown. Several of those nominees have been confirmed or approved by the Senate Judiciary Committee and set for a full Senate vote. Among them is Wendy Vitter, wife of former Sen. David Vitter (R-La.), whom Trump nominated to a district court seat in Louisiana. In April, she told the judiciary committee, “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.”
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.
“Rao’s refusal to acknowledge that Brown was rightly decided is a serious flouting of democratic norms and a judicial dog whistle,” says Todd A. Cox, the NAACP Legal Defense and Educational Fund policy director, “signaling that Brown, its legacy, and all the progress flowing from it are potentially up for renegotiation.”
Before Trump took office, you would have to look back to failed Supreme Court nominee Robert Bork to find a judicial candidate who suggested the historic decision was anything but universally accepted. As New York Times columnist Linda Greenhouse wrote after Bork died in 2012, “the nominee had violated a cardinal rule of modern judicial confirmation hearings, which is that Brown v. Board of Education is beyond debate.”
Bork was an originalist, someone who analyzed cases through the lens of the original intent of the Constitution’s framers rather than taking contemporary context into account. That’s one reason the Senate rejected his Supreme Court nomination. Senators feared that anyone who was so inflexibly wedded to a 200-year-old interpretation of the Constitution would have real trouble supporting civil rights laws given that the Constitution originally allowed not only segregation but slavery. Since the Bork debacle, originalist scholars and judges, most notably the late Supreme Court Justice Antonin Scalia, have found a way to square Brown with their judicial philosophy. In a 2012 book, Scalia wrote that Brown was supported by originalist analysis and correctly decided in its reliance on the 14th Amendment.
All of which makes Trump nominees’ refusal to talk about the decision so mind-boggling, especially Rao’s. She was a law professor at the Antonin Scalia Law School at George Mason University before going to work in the Trump administration. Blumenthal has asked 30 Trump nominees the same question about Brown, and at least a third of them have refused to answer it. “I’m mystified, frustrated, and frankly outraged that they would leave any doubt that Brown v. Board of Education was correctly decided,” he told Mother Jones.