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Judge Who Wouldn’t Say Brown Decision Correct Changes Mind (1)

Dec. 4, 2019, 8:53 PMUpdated: Dec. 4, 2019, 10:25 PM

A Trump judicial nominee who previously wouldn’t say whether a landmark Supreme Court decision that struck school segregation as unconstitutional was correctly decided changed his answer at his second Senate hearing Dec. 4.

Andrew Brasher, a Donald Trump-appointed judge on the U.S. District Court for the Middle District of Alabama who the White House tapped for an open appeals court seat, told a Senate panel Brown v. Board of Education was correctly decided at his confirmation hearing for the U.S. Court of Appeals for the Eleventh Circuit.

Brasher previously answered the question in June 2018 at his confirmation hearing for the federal trial court seat he now holds, saying it would be “inappropriate” to give his opinion on Supreme Court precedent.

“The general rule is that judges and judicial nominees should not give a thumbs-up, thumbs-down to Supreme Court cases,” Brasher told Connecticut Democrat Sen. Richard Blumenthal, the committee member who posed the question on both occasions, at the Dec. 4 hearing.

“But having considered this over the last 18 months, I think it’s appropriate for me, in light of the unique role that Brown plays within our Constitutional system, to say that I do think Brown was correctly decided,” Brasher said.

The question about Brown is one posed, typically by Blumenthal, to each of Trump’s federal judicial nominees. In recent months, the nominees have agreed that the 1954 case was correctly decided.

But before that, several nominees refused to answer the question, which drew ire from The Leadership Conference on Civil and Human Rights who said refusal to answer the question sends a “dangerous signal” to Americans that “Brown could someday be overturned and that our nation could return to the disgraceful days of racial segregation.”

Since that letter was sent in May, there has been only one nominee who wouldn’t answer the question in a hearing, Lena Zwarensteyn, the organization’s director of fair courts campaign, said.

Carl Tobias, a law professor at the University of Richmond, said “there’s no downside” to saying Brown was correctly decided because it’s a fundamental piece of American law that isn’t likely to be challenged.

While Brasher wouldn’t previously say whether the decision was correct, he did say he would apply it as precedent just like any other Supreme Court decision.

Brasher, 38, has been a district court judge for several months and would be among the youngest circuit court judges if confirmed. Trump has pushed for younger nominees to federal courts to extend their influence.

Before becoming a judge, Brasher was Alabama solicitor general and clerked on the Eleventh Circuit, which covers Georgia, Alabama, and Florida. He argued three times at the Supreme Court as the Alabama solicitor general, including defending the state in a lawsuit alleging racial gerrymandering.

Brasher received a unanimous “Well Qualified” rating from the ABA, which improves upon his “Qualified” rating in his previous go-around with the nominations process. He was confirmed to the district court, 52 to 47.

Judicial Emergencies

The Judiciary committee also held hearings for five other nominees for federal district court seats Dec. 4, including three who would fill judicial emergencies.

Central District of California nominee Fernando L. Aenlle-Rocha and District of Arizona nominees John C. Hinderaker and Scott H. Rash would all fill vacant seats considered emergencies.

Emergency vacancies are determined by an algorithm that weighs how long the seat has been open and how many weighted filings a judge in that district handles. There are currently 51 total judicial emergencies caused by vacancies in the U.S. All but one are in district courts.

The other nominees who testified before the committee were Joshua M. Kindred and Matthew T. Schelp, who are nominated to the District of Alaska and Eastern District of Missouri, respectively.

(Updates with quotes from Lena Zwarensteyn and Carl Tobias in paragraphs in the ninth through eleventh paragraphs.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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