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

Posted at 7:06 AM, Apr 12, 2018

Wendy Vitter, one of President Donald Trump's judicial nominees, refused on Wednesday to say whether a landmark civil rights opinion was correctly decided, triggering outrage and renewed criticism of the President's efforts to reshape the judiciary.

At issue was Brown v. the Board of Education -- a seminal opinion that held that state laws requiring separate but equal schools violated the Constitution.

"I don't mean to be coy," Vitter, who is up for a seat on the US District Court for the Eastern District of Louisiana, said at her confirmation hearing, "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."



Vitter -- who is the General Counsel of the Roman Catholic Archdiocese of New Orleans and is married to former Louisiana Republican Sen. David Vitter, who was implicated in the sex scandal concerning the so called "DC Madam" back in 2007 -- emphasized that, if confirmed, she'd set aside "personal, religious or political views" and she would be bound by Supreme Court precedent.

As the Twitterverse lit up with progressive fury, a few were quick to point out that Vitter, is not alone in the sentiment that nominees should not offer up their personal thoughts on decided cases.

But Brown v. Board of Education?

"It's a big deal if someone wants to be a judge, charged with dispensing equal justice for all, can't commit herself to the basic principle that the Constitution prohibits segregation designed to place a 'badge of inferiority' on an entire group of people based on the color of their skin," said Elizabeth Wydra of the Constitutional Accountability Center.

Kristine Lucius, of The Leadership Conference on Civil and Human Rights, called Vitter's testimony "shocking." Lucius is no fan of other aspects of Vitter's record -- including on the subject of abortion -- and has urged the Senate to reject the nomination.

Sen. Richard Blumenthal, a Connecticut Democrat who launched the inquiry, often poses similar questions during Senate Judiciary hearings. Nominees -- asked about Brown and other landmark cases -- don't always have stock answers.

At times, other nominees -- even for the Supreme Court -- have declined to comment out of a fear of infecting the judicial process.

As Vitter said, there is a fear of a "slippery slope " that impartiality will be questioned.

Just last month, for instance, John B. Nalbandian, up for a seat on the Sixth Circuit, told Blumenthal that he thought that Brown was correctly decided and said he felt comfortable commenting upon it because it was a "accepted" and a "longstanding" precedent.

But he wouldn't talk about Roe v. Wade, the landmark Supreme Court abortion opinion. And he said he thought it was "inappropriate" to go down a list of Supreme Court opinions and express his opinions on whether they were correctly decided.

"I think it would be inappropriate for me to comment," he said, but added that as a circuit court nominee, he would be faithful to precedent.

But others, like Justice Neil Gorsuch and Chief Justice John Roberts, didn't hesitate to say Brown was correctly decided.

Blumenthal asked the same question of Gorsuch during his confirmation hearing in 2017.

"Brown v. Board of Education," Gorsuch said, "was a correct application of law of precedent."

"There is no daylight," the future justice said.

In his own confirmation hearing, Roberts was happy to opine on Brown. "The genius of the decision was the recognition that the act of separating the students was where the violation was. And it rejected the defense -- certainly, just a theoretical one given the actual record -- that you could have equal facilities and equal treatment," he said.

But Justice Antonin Scalia would not even answer a question about Marbury v. Madison -- the very decision that asserted the power of judicial review -- back in 1986.

"Marbury v. Madison is one of the pillars of the Constitution," Scalia said. "To the extent that you think a nominee would be so foolish or so extreme as to kick over one of the pillars of the Constitution, I suppose you shouldn't confirm him," Scalia said.

"But I don't think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison."

Scalia -- who would go on to become an outspoken conservative icon on the Supreme Court -- wasn't finished.

He told senators he "ought to be in trouble" if they were to uncover anything he'd written disregarding the opinion, "without you asking me specifically about my views."