Sixty-five years ago, the Supreme Court ruled unanimously that racial segregation in public schools was unconstitutional, in Brown v. Board of Education, which eventually led to the integration of schools.
In recent months, Donald Trump’s judicial nominees have refused to say the case was rightly decided.
Justice Brett Kavanaugh called Brown “the single greatest moment in Supreme Court history” during his confirmation hearing, but other recent nominees have argued that a legal ethics rule forbids them from commenting on decided cases.
Scholars say there’s no ethical reason they can’t answer the question about Brown. The tactic is seen by some as a way of avoiding questions on other controversial cases, such as Roe v. Wade.
The landmark decision issued May 17, 1954, ruled that segregation in public schools was unconstitutional under the 14th Amendment’s equal protection clause. It found that separate educational facilities were “inherently unequal.”
A Question of Ethics?
Like other Trump nominees beginning with recently confirmed district court Judge Wendy Vitter in April 2018, federal district court picks Ada Brown and Steven Grimberg recently refused to say whether Brown was correctly decided.
About 20 pending district and appeals court nominees have refused to opine on the merits of Brown, according to The Leadership Conference on Civil and Human Rights, a progressive organization that is opposing the nominees.
Others include Judge Andrew Oldham of the U.S. Court of Appeals for the Fifth Circuit, District of Columbia Circuit Judge Neomi Rao, and Second Circuit Judge Michael Park.
“Nominees are not instructed on how to answer any question,” a Justice Department spokesperson said.
Sherrilyn Ifill, president of the progressive NAACP Legal Defense and Educational Fund, wrote this week that nominees “either support Brown, the rule of law and equality under the law, or they do not,” in a Washington Post opinion piece.
Southern District of Mississippi Judge Carlton Reeves took aim at Trump nominees over Brown in a speech last month, listing their refusal as a reason that “‘We the People’ need to defend the judiciary.”
The rule that nominees relied on at their confirmation hearing, Canon 3A(6) of the Code of Judicial Conduct, states that a “judge should not make public comment on the merits of a matter pending or impending in any court,” except for public statements made in the course of a judge’s official duties, explanations of court procedures, or scholarly presentations relating to legal education.
But legal ethicists say the canon doesn’t justify avoiding questions about Brown. No serious challenge to Brown is “pending or impending in any court,” Steven Lubet, a professor at Northwestern University law school who writes about judicial ethics, told Bloomberg Law.
Judicial nominees who aren’t yet judges must still adhere to the Code of Judicial Conduct, under Rule 8.2 of the Model Rules of Professional Conduct.
Trump has made significant progress in reshaping the courts with conservative judges, including his appointment of 40 appeals court judges at a record-setting pace.
Nominees who refuse to say whether Brown was properly decided may be doing so to avoid discussing other decisions such as Roe v. Wade.
Roe, which established abortion as a constitutional right, may be in danger because abortion bans in states including Alabama and Georgia could spark legal fights that would cause the high court to revisit the decision.
Judicial nominees who might have to rule on such a pending challenge would arguably be prohibited under the canon from opining on Roe’s merits.
“The nominees are no doubt trying to avoid a slippery slope,” Northwestern’s Lubet said.
Conservative court watcher Ed Whelan suggested that the Democratic senator who usually asks nominees about Brown,
During Vitter’s confirmation hearing, Whelan said, Blumenthal “raced down” the slippery slope after Vitter declined to comment on Brown, immediately following up with a question about Roe.
Blumenthal said about Brown that “anyone who fails to endorse such a sacrosanct decision is clearly out of the legal and societal mainstream and unworthy of confirmation,” in a speech on the Senate floor Thursday.
Sixth Circuit Judge John Nalbandian told Blumenthal that Brown was correctly decided, at his confirmation hearing last year.
But Nalbandian then refused to say the same about Roe, which established abortion as a constitutional right.
Blumenthal said he couldn’t understand why Nalbandian could say Brown was rightly decided but not Roe.
Ninth Circuit Judge Ryan Nelson took another approach:
“Do you believe that Brown v. Board of Education was correctly decided?” Blumenthal asked.
“Like all Supreme Court precedent, Senator, I believe that Brown v. Board of Education was correctly decided,” Nelson replied
Blumenthal called that response “intellectually dishonest.”
The reluctance of nominees to discuss controversial cases is understandable, Deborah Rhode, a professor at Stanford Law School who is frequently cited on legal ethics, said.
But claiming that the canon prohibits one from affirming the correctness of Brown is disingenuous, and isn’t supported by the rule’s text or prior interpretations of it, Rhode said.
One can argue that a nominee shouldn’t discuss Roe under the canon, because of ongoing cases that could pose a challenge to that decision, said Charles Gardner Geyh, a professor at Indiana University Bloomington’s Maurer School of Law. His scholarship includes judicial conduct and ethics.
But there are no serious cases challenging Brown, and nominees using the canon to avoid discussing it are “trying to manipulate the Code of Conduct for cover,” Geyh said.
That’s problematic because the nominees’ interpretation of the canon would prevent judges from even writing articles about landmark decisions, which they do often, Geyh said.
Justices Spoke Up
Many judges have given their views on past decisions that are settled law, Rhode said.
In addition to Kavanaugh, the canon didn’t stop U.S. Supreme Court justices including Chief Justice John Roberts or Justice Samuel Alito from saying Brown was properly decided during their confirmation hearings.
In 2005, Roberts said he was willing to opine on the merits of Brown under the canon because it wasn’t likely to come up before the high court again, unlike other cases.
Alito said in 2006 that Brown “was one of the greatest if not the single greatest thing that the Supreme Court of the United States has ever done.”