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Bill McCarthy
By Bill McCarthy July 25, 2019

Have Trump judicial nominees refused to say Brown vs. Board was properly decided?

President Donald Trump’s attacks against four Democratic congresswomen of color resulted in condemnation from the Democrat-led House and a wave of commentary on the Sunday shows.

Roland Martin, a journalist and news show host, said on ABC’s "This Week" that the president’s rhetoric can be linked to a "broader issue" with the Republican Party and its policies. 

"When you have Republicans who are advancing federal judges who won't even say that Brown vs. Board of Education was properly decided … you have a party that is driving policies at supporting these sort of racist appeals," Martin said July 21 in a panel discussion.

We wondered if Republicans really have advanced federal judges who haven’t signaled clear support for Brown vs. Board of Education, the landmark 1954 Supreme Court decision that ruled racial segregation in public schools unconstitutional.

Martin is right, but he leaves out the context of the judicial nominees’ refusals to comment.

Martin pointed to the Twitter accounts of three civil rights activists who have been tracking the statements — or lack thereof — by Trump judicial nominees on Brown vs. Board.

"We’ve covered this for months," he said, citing articles from Slate, Mother Jones, ABC News, the Washington Post, NPR and USA Today as further evidence in support of his claim.

According to those reports and a list compiled by the Leadership Conference on Civil and Human Rights, a nonprofit legislative advocacy group, more than 20 currently pending Trump nominees declined to state unequivocally that they believed the case was correctly decided during hearings before the Senate Judiciary Committee.

The first was Wendy Vitter, whom the Senate confirmed as a federal district judge in Louisiana in May, without a single Democratic vote.

"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 in April 2018. 

Pressed further, she said, "Again, I’ll respectfully not comment on what could be my boss’s ruling, the Supreme Court. I would be bound by it, and 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."

Other then-nominees such as Judges Andrew Oldham and Neomi Rao followed her lead (and were confirmed without any Democratic votes).

Sen. Richard Blumenthal, D-Ct., who frequently asks Trump nominees about Brown vs. Board, asked Oldham and Rao multiple times if they think the case was "correctly decided."

Both said it would be inappropriate for a lower court nominee to take a stance on any particular Supreme Court decision. 

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"Even the most universally accepted court case is outside the bounds of a federal judge to comment on," Oldham said, refusing more than once to offer his two cents.

Rao also danced around Blumenthal’s repeated questions, saying the case was "a really important precedent of the Supreme Court," but adding, "As a judicial nominee, I think it’s not appropriate for me to comment on the correctness of particular precedents."

It’s worth noting that Vitter, Oldham, Rao and other nominees who dodged the question did not say they believed Brown vs. Board was ruled incorrectly. 

Some Trump nominees have said they would not weigh in on any established Supreme Court precedent. Others, such as Ada Brown, who has yet to be confirmed, have cited a judicial canon that says judges "should not make public comment on the merits of a matter pending or impending in any court."

It’s also possible some have feared that voicing an opinion on Brown vs. Board would open them up to similar lines of questioning about other major Supreme Court rulings, such as Roe vs. Wade, which established a legal right to abortion.

Whatever the reason, it’s still true, as Martin claimed, that they stopped short of "say(ing) that Brown vs. Board of Education was properly decided."

However, Buzzfeed News reported in June that some of Trump’s more recent nominees have endorsed Brown vs. Board in their hearings. According to that report, five of the six nominees at a May 22 hearing said the decision, or the legal reasoning behind it, was correct.

Several current Supreme Court justices have also stated their support for Brown vs. Board during confirmation hearings. 

Chief Justice John G. Roberts Jr. endorsed the decision, and Justice Brett M. Kavanaugh called it "inspirational" and "the single greatest moment in Supreme Court history," according to the Washington Post.

Justice Neil Gorsuch, on the other hand, resisted questions about specific Supreme Court precedents during his confirmation hearing. But even he ultimately told Blumenthal, "We’re on the same page on Brown vs. Board of Education, senator. It’s a great and important decision."

For what it’s worth, Deputy Attorney General Jeffrey Rosen also avoided giving a clear answer on whether he believes the case was properly decided during his own nomination hearing. He was confirmed by the Senate, again without a single Democratic vote, in May. 

Our ruling

Martin said Republicans "are advancing federal judges who won't even say that Brown vs. Board of Education was properly decided."

A number of Trump judicial nominees have refused to give clear answers when asked if they thought Brown vs. Board of Education — the decision that ruled racial segregation in public schools unconstitutional — was correctly decided. It’s important to note they haven't said it was wrongly decided; rather, they have refused to comment on Supreme Court precedents. 

Those nominees have been advanced largely along party lines.

We rate this statement Mostly True.

Our Sources

ABC News, "Roland Martin: Trump’s policies ‘appeal to white fear,’" July 21, 2019

ABC News, "‘This Week’ Transcript 7-21-19: Rep. Elijah Cummings, Mercedes Schlapp, Gov. Steve Bullock," July 21, 2019

U.S. Courts, "History - Brown v. Board of Education Re-enactment," accessed July 23, 2019

U.S. Courts, "Code of Conduct for United States Judges," accessed July 24, 2019

The Leadership Conference on Civil and Human Rights, "Currently Pending Trump Judicial Nominees and Brown v. Board of Education," accessed July 23, 2019, "Roll Call Vote 116th Congress - 1st Session," May 16, 2019, "Roll Call Vote 116th Congress - 1st Session," May 16, 2019, "Roll Call Vote 116th Congress - 1st Session," March 13, 2019, "Roll Call Vote 115th Congress - 2nd Session," July 18, 2018

Buzzfeed News, "Trump’s Judicial Nominees Are Finally Saying Brown V. Board Of Education Was Right After At Least One Republican Senator Complained," June 21, 2019

NPR, "Trump Judicial Nominees And ‘Brown V. Board Of Education,’" May 19, 2019

USA Today, "On Brown v. Board of Education, Trump judicial nominees won't commit to US law and values," May 18, 2019

The Washington Post, "Many Trump judicial nominees won’t affirm the Brown v. Board ruling. And that concerns some legal experts," May 17, 2019

The Washington Post, "Trump judicial nominees decline to endorse Brown v. Board under Senate questioning," May 16, 2019

The Washington Post, "Jeffrey Rosen confirmed by Senate as Justice Department’s new No. 2," May 16, 2019

Statesman, "Why Trump judicial nominees won’t endorse Brown v. Board of Education," May 16, 2019

Slate, "Trump’s Nominees Won’t Say if Brown v. Board of Education Was Decided Correctly," April 11, 2019

The Leadership Conference on Twitter, April 10, 2019

The Daily Beast, "Trump’s Nominee for Deputy Attorney General Refuses to Say if He Supports Brown v. Board Ruling," April 10, 2019

Mother Jones, "Trump Judicial Nominees Are Refusing to Endorse Brown v. Board of Education," Feb. 14, 2019

Legal Defense Fund on Twitter, Feb. 5, 2019

The Washington Post, "Supreme Court nominee Brett Kavanaugh won’t commit to removing himself from cases directly affecting Trump," Sept. 5, 2018

Legal Defense Fund on Twitter, April 25, 2018

CNN, "Trump judicial nominee refuses to say if landmark civil rights opinion was correctly decided," April 13, 2018

The Leadership Conference on Twitter, April 11, 2018

ABC News, "Trump judicial nominee won't say if Brown v. Board of Education correctly decided," April 12, 2018

Email interview with Roland Martin, July 22, 2019

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