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Senate committee advances judicial nominees who won’t comment on Brown v. Board

On the anniversary of Brown v. Board of Education, senators debated over voting for two nominees who refused to say it was decided correctly.

Wendy Vitter, wife of former Sen. David Vitter, is sworn in during her confirmation hearing in the Senate Judiciary Committee to be United States District Judge for the Eastern District of Louisiana on April 11, 2018. (CREDIT: Bill Clark/CQ Roll Call)
Wendy Vitter, wife of former Sen. David Vitter, is sworn in during her confirmation hearing in the Senate Judiciary Committee to be United States District Judge for the Eastern District of Louisiana on April 11, 2018. (CREDIT: Bill Clark/CQ Roll Call)

On Thursday, the Senate Judiciary Committee voted to advance three judicial nominees who would not tell senators they believed Brown v. Board of Education was correctly decided. Now, the full Senate will vote on whether to confirm them.

The committee advanced the controversial nominees, Michael Truncale, Wendy Vitter, and Andrew Oldham.

The votes on Vitter, Truncale, and Oldham were initially scheduled for last week, on the anniversary of the Brown v. Board of Education, but were rescheduled. Any member of the Senate Judiciary Committee can delay a vote and they don’t have to give a reason for doing so. Throughout the debate on the nominees, Democratic senators emphasized the anniversary and their refusal to comment on the case.

In April, Vitter, counsel for the Roman Catholic Archdiocese of New Orleans, was asked by Senator Richard Blumenthal (D-CT) whether she agreed with the 1954 decision declaring state laws that allowed school segregation unconstitutional.

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Vitter responded, “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. My personal, political, or religious views I would set aside.”

When Blumenthal pressed Vitter on the subject, she said, “Again, I would respectfully not comment … If I start commenting on whether I agree with this case or don’t agree with this case, I think we get into a slippery slope.”

Weeks later, Oldham, who was nominated for a seat on the U.S. Court of Appeals for the 5th Circuit, and who now serves as general counsel to Texas Gov. Greg Abbott (R), said that he could not discuss the case when Blumenthal asked him the same question.

“I can’t believe that you just gave me that answer,” Blumenthal responded.

Michael Truncale, who was nominated for the U.S. District Court for the Eastern District of Texas, similarly dodged the question. Truncale was also asked about his earlier comments that Texas State Sen. Wendy Davis (D) “wants to kill babies five months into term.”

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He responded, “As a nominee for the judicial position I am seeking a position in the non-policy making area of government. So I think that is an important distinguishment because any personal or political views that may have been stated have no applicability and will not enter into any decision that I made.”

Vitter, Truncale, and Oldham would be appointed for life. Vitter would serve on the U.S. District Court for the Eastern District of Louisiana, and Oldham would serve on the U.S. Court of Appeals for the fifth district. Truncale would serve on the U.S. District Court for the Eastern District of Texas.

Last week and this week, Republicans balked at the notion that the nominees’ refusal to say Brown v. Board was correctly decided indicated that they supported school segregation.

“I have no doubt that nominees before us believe segregation is deeply wrong,” Sen. Chuck Grassley (R-IA) said last week, before adding that “it is entirely improper for judicial nominee to make promises on how they will decide cases before votes.”

Grassley also said that since Democrats wanted more diversity among nominees, they should be happy to vote for Vitter because she’s a woman. 

Sen. Orrin Hatch (R-UT) called it a “dangerous path” to expect nominees to answer these questions. Sen. Mike Lee (R-UT) said the discussion over their previous comments “borders on” accusing people of racism.

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Democratic senators pushed back on Republicans’ claims. Sen. Kamala Harris (D-CA) pointed out that it’s illogical to say that Vitter shouldn’t have to comment on the case because it’s obvious she opposes segregation.

“The logic is not sustainable … If asked, ‘Do you love your mother?,’ I respectfully would not comment because caution would dictate I don’t comment. It doesn’t hold water,” she said.

Dianne Feinstein (D-CA) said, “What does it say about a nominee that she could not state clearly and unambiguously that Brown v. Board of Education was correctly decided and indeed has always been the right outcome under the 14th amendment with or without hindsight?”

She pointed out that historically, nominees have answered questions about Brown differently.

John Roberts and Anthony Kennedy were asked about the case and responded differently than these two nominees. In 1987, Anthony Kennedy said about Brown, “The framers of the Constitution originally, in 1789, knew that they did not live in a constitutionally perfect society, but they promulgated the Constitution anyway. They were willing to be bound by its consequences. And in my view the 14th Amendment was intended to eliminate discrimination in public facilities on the day that it was passed.”

Roberts also routinely gave answers that supported the Brown decision during his confirmation hearings in 2005. Sen. Ted Kennedy (D-MA) asked Roberts, “Do you agree with the Court’s conclusion that the segregation of children in public school solely on the basis of race is unconstitutional?” and he responded, “I do.”

When Sen. Herbert Kohl (D-WI) asked Roberts about the case at the time, Roberts said, “If you look at the Brown decision, it is more consistent with the Fourteenth Amendment and the original understanding of the Fourteenth Amendment than Plessy v. Ferguson. And it’s based on the conclusion that the separation of the races in the schools was itself a violation of equal protection. In other words, it’s not a departure from the Fourteenth Amendment.”

Perry Grossman, a civil rights attorney in New York City, and Dahlia Lithwick, who reports on the courts, wrote for Slate, “Neither Justice Ginsburg nor any pre-Trump judicial nominee in recent memory has given such an answer. Even if you believe nominees have spent decades telling polite lies about the enduring importance of Brown, the fact that we are now dispensing with those polite lies is extraordinary.”

Several groups have opposed these judicial nominees. Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, wrote on Medium that Vitter, Truncale, and Oldham. Gupta wrote:

“The impact of confirming far-right extremists to lifetime seats on the federal bench is an affront to civil and human rights that will far outlast this administration … If confirmed, these nominees would be a danger to the over 30 million people who reside in the Fifth Circuit and indeed to the entire country, since lower court judges have the power in some cases to issue nationwide injunctions.”

The NAACP also criticized Vitter’s comments on Brown vs. Board of Education in April.

“Her refusal to show support for Brown v. Board of Education, which outlawed segregation in schools, speaks volumes about where her priorities lie. It is unacceptable and should be disqualifying. Simply put, Wendy Vitter is not fit to judge,” NAACP president and CEO Derrick Johnson stated.

Reproductive rights groups have also opposed Vitter’s nomination. She once led a panel where she encouraged people to pick up a brochure that said women who take birth control pills are more likely to die violently. The Sierra Club, Alliance for Justice (AFJ), and the League of Conservation Voters all oppose Oldham’s nomination.

Before the committee voted, Sen. Mazie Hirono (D-HI) said that the nominees’ records matter and that senators should be able to discuss what they believe are extreme ideological positions.

“What a nominee says and does before they receive a lifetime appointment to the federal bench matters,” Hirono said. “When we asked Wendy Vitter about her record about trading debunked conspiracy theories to fight against a woman’s right to an abortion, it is because we think it is a guide to what she will do as a judge. In fact, it’s why she wants the job and it’s why she was picked. Nobody should insult this committee and the role of the Senate by pretending the records of these nominees don’t matter and that they don’t need to answer questions about how they should approach the law.”