For months, a Democratic senator has been asking Trump judicial nominees what appears to be a straightforward question: Was Brown v. Board of Education, the landmark decision that ended legalized school segregation, properly decided?
Legal scholars across the ideological spectrum say the answer is clearly yes. Still, more than two dozen nominees have declined to answer the question at a time when many schools remain segregated by race.
The standoff has come to resemble a serious game of chicken. If the nominees say Brown was correctly decided, are they obligated to opine on more controversial precedents, in particular Roe v. Wade, which established a woman’s right to abortion? Some nominees say the Democratic senators are not content with statements calling segregation immoral.
The other side says the refusal to engage undermines the national consensus around equal protection under the law that underlies Brown.
That decision, announced 65 years ago Friday, is widely seen as one of the Supreme Court’s greatest moments, with the court’s unanimity sending a powerful message to a segregated nation.
The matter was especially pronounced in the nomination of Wendy Vitter, who was confirmed Thursday as a federal district judge in Louisiana without the vote of a single Democratic senator.
“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,” Vitter said during her confirmation hearing. “If I start commenting on, ‘I agree with this case,’ or ‘don’t agree with this case,’ I think we get into a slippery slope.”
“I was stunned by her answer,” Sen. Richard Blumenthal (D-Conn.), who posed the question, said this week on the Senate floor. “Brown is woven into the fabric of our nation. How could anyone suggest disagreeing with Brown, as she did?”