Senators Ponder: How Forthcoming Should Judicial Candidates Be?

Republicans push back on Democratic concerns over responses to school desegregation question

Democrats say U.S. District Court nominee Wendy Vitter did not clearly endorse the Brown v. Board of Education Supreme Court decision, but Republicans pushed back on that characterization. (Bill Clark/CQ Roll Call file photo)
Democrats say U.S. District Court nominee Wendy Vitter did not clearly endorse the Brown v. Board of Education Supreme Court decision, but Republicans pushed back on that characterization. (Bill Clark/CQ Roll Call file photo)
Posted May 25, 2018 at 5:04am

The Senate Judiciary Committee advanced two judicial nominees Thursday amid an ongoing debate over how forthcoming candidates should be about their views on established Supreme Court decisions, particularly the landmark school desegregation ruling from 64 years ago.

All Democrats on the committee voted against Andrew Oldham to be a judge on the U.S. Court of Appeals for the 5th Circuit based in New Orleans, and Wendy Vitter to be a judge in the U.S. District Court for the Eastern District of Louisiana. Among their objections: They say the nominees did not clearly endorse the high court’s decision in Brown v. Board of Education during their confirmation hearings.

“It’s an easy question,” Sen. Dianne Feinstein, the committee’s top Democrat, said during a lengthy discussion of Vitter’s nomination last week. Feinstein said Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy had clearly backed the Brown decision at their confirmation hearings.

“What does it say about a nominee that she could not simply state clearly and unambiguously that Brown v. Board of Education was correctly decided?” Feinstein said.

The committee’s action Thursday comes as Senate Republicans prioritize President Donald Trump’s judicial nominees and streamline the confirmation process. Judiciary Democrats suspect those picks have ideological views that they won’t set aside once they get to the bench, and say the process changes weaken the Senate’s advice and consent role.

Vitter and Oldham advanced to the Senate floor on 11-10 party-line votes.

Committee Republicans downplayed concerns about nominees’ refusal to speak about Supreme Court decisions, particularly when nobody on Judiciary and none of the nominees disputes the Brown decision.

After the vote Thursday, Senate Majority Whip John Cornyn said judicial nominees have concerns about ethical obligations to avoid saying how they would decide a case if confirmed.

And the Texas Republican called it a ruse to take an established Supreme Court precedent and ask a nominee “whether they agree with it or not, when they are bound by it, as we all are.”

“To me it was just a made-up issue, and clearly it was orchestrated to coincide with the anniversary of Brown v. Board of Education so it could appeal to various constituencies,” Cornyn said. “So, I just didn’t consider it a serious question.”

Sen. Mazie K. Hirono said Vitter’s previous statements about issues such women’s rights are a guide to what she’ll do as a judge.

“In fact, that’s why she wants the job and that’s why she was picked,” the Hawaii Democrat said Thursday. “Nobody should insult this committee and the role of the Senate by pretending that the records of these nominees don’t matter or they shouldn’t have to answer our questions about how they would approach the law.”

Watch: McConnell, Schumer Disagree on Rule Change Pertaining to Judge Nominations

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Slippery slope

During last week’s discussion, Sen. Ted Cruz said the reason why nominees don’t answer whether the Brown decision was rightly decided is that it leads to questions about more contentious rulings on abortion, same-sex marriage, gun rights and campaign finance.

“Because the next question will be, ‘Well, if you’re in the business of saying which Supreme Court cases were rightly decided then let’s get to the ones we really care about,’”the Texas Republican said. “Let’s get to the ones that are really the nub of the disagreement.”

Sen. Mike Lee said at last week’s confirmation hearing that the committee can disagree about what a judicial nominee ought to be able to say, and Democrats might be frustrated with the nominees’ view on what judicial ethics allow them to answer.

“But please don’t mistake that for disagreement with Brown v. Board of Education, which to my knowledge is disputed nowhere among the nominees we’re considering today,” the Utah Republican said.

“To suggest as has been suggested today that any one of our nominees disagrees with the holding in Brown v. Board of Education is absurd, it’s preposterous, it’s insulting, and it borders on accusing someone of racism,” Lee said.

Sen. Kamala Harris said last week she was part of the second class to integrate Berkeley, California, public schools after the Brown decision in 1954 and found the conversation “deeply troubling.”

“To suggest that a nominee for a lifetime appointment to the bench, that she should be excused when asked about something that is apparently so evident — whether or not Brown v. Board of Education is binding — she should be excused for responding to that question, quote, ‘I would respectfully not comment,’” the California Democrat said.

“And we are supposed to excuse her because caution would dictate, apparently, that that is the answer she should give, I find deeply troubling and in fact, I find the logic actually is not sustainable,” she added.

The NAACP Legal Defense and Educational Fund condemned Thursday’s vote to advance Vitter and Oldham and said support of the Brown decision should be a prerequisite to a lifetime seat on a federal bench.

“The refusal of Wendy Vitter and Andrew Oldham to endorse the Supreme Court’s unanimous decision in Brown v. Board of Education is a judicial dog-whistle and should be disqualifying,” Todd Cox, the group’s policy director, said in a news release. “By advancing these unacceptable nominees a week after the 64th anniversary of the Court’s watershed ruling, members of the Senate Judiciary Committee denigrate the historic Brown decision — a central component of the legal canon.”