A difficult area
Personal feelings?
A federal judicial nominee refused to say whether she agreed with the outcome of the landmark civil rights ruling Brown v. Board of Educationduring her confirmation hearing on Wednesday.
Wendy Vitter, a Louisiana lawyer nominated for a federal judgeship by President Donald Trump, would not say if she supported the 1954 Supreme Court decision that famously outlawed racial segregation in schools. During her confirmation hearing to be the district judge for Louisiana’s Eastern District, Vitter repeatedly said she could not comment on her personal feelings about Supreme Court decisions.
“Do you believe that Brown v. Board of Education was correctly decided,” Connecticut Sen. Richard Blumenthal, a Democrat, asked.
“I don’t mean to be coy,” Vitter responded. “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. 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.”
Come on. It’s a confirmation hearing. They’re not interested in her personal feelings about the daisies and the sunsets, they’re interested in her judicial views. Nominees aren’t supposed to say “Oh I can’t tell you that, that’s personal.” No, it’s not personal, it’s a federal judgeship.
“It would be inappropriate for me to tell you anything about how I would perform a lifetime appointment before you give it to me.”
I don’t think this is as simple — or as nefarious — as most reports are implying.
I’m not sure what the right approach should be for nominees. I don’t like the idea of prospective judges being asked to declare their views under oath on issues that are likely to come before them, with the threat that there will be recusal motions when the issues do come up, or threats of impeachment if they decide a case in a way that apparently contradicts their testimony. Or with the prospect of turning confirmation hearings into a game of “let’s see how far I can push you and make you lose votes.” On the other hand, if nominees can duck any tough question on ethical grounds, then what’s the point of the hearing?
I just think people should be consistent: you should want the same principles to apply to Democratic nominees as Republicans.
There’s ample precedent for judges to refuse to answer questions in confirmation hearings about specific cases. Then-judges Kennedy, and later Ginsburg, declined to answer questions about the constitutionality of the death penalty. Then-Judge Roberts later relied on the so-called “Ginsburg precedent” to refuse to answer questions about certain issues as well.
It is perhaps taking this principle a little too far to apply it to Brown v. The Board, in that nobody really expects that issue to be relitigated, and in any event only the Supreme Court, not a district judge like Vitter would be, could overrule it. Vitter could quite safely express her opinion on that case without fear that she will have to recuse herself from some future case in the Eastern District of Louisiana.
Vitter claims it’s a slippery slope. What she didn’t say, is that presumably the next question will be “what about Roe v. Wade? What about Obergefell v. Hodges?” Or the various affirmative action cases, or Voting Rights Act cases. She doesn’t want to answer those questions (whether out of fear that it will cost her confirmation votes, or concern about future recusals, or high-minded concern for judicial ethics, or some combination), and so she’s got to draw the line somewhere.
If that seems outrageous to you, just make sure you have a consistent position as to when the next Democratic president’s nominees refuse to answer whether they will vote to overturn Citizens United, or Heller, or whatever other disliked “conservative” precedent you care to name.
The implication I’ve seen in various commentary is that Vitter must be pro-segregation and is trying to avoid admitting it. If that’s the case, it seems to me that there ought to be plenty of ways to draw that out of her that don’t involve commentary on specific case decisions.
Oops. Blockquote fail, sorry.
Strap her to a polygraph and ask her how she feels about Dredd Scott. I think most Trump appointees would show ‘interesting’ reactions.