The legal academy has long been engaged in a fascinating conversation about how big constitutional ideas can shift from being, as Yale Law professor Jack Balkin has put it, “off the wall” to “on the wall.” The question there is, when and how do initially fanciful ideas—like that the Affordable Care Act is unconstitutional, or that the Second Amendment is an individual right—start to gain traction and become serious questions for serious people?
The corollary to that debate is this one: When do ideas that have been “on the wall” for so long that they are basically trophies suddenly become subject to debate and dispute? It turns out that for Donald Trump’s judicial nominees, it’s easy enough to eviscerate a seminal, enduring legal proposition.
Consider Brown v. Board of Education, the landmark school desegregation case from 1954, which has long been celebrated by legal thinkers across the political, ideological, and temperamental spectrum as one of the most transformational constitutional statements of equality in American history. Conservative luminaries, when asked about their views of Brown, have tended to wax poetic about its position in the civil rights firmament. At his Supreme Court confirmation hearing in 2006, Samuel Alito called it “one of the greatest, if not the single greatest thing that the Supreme Court of the United States has ever done.” Only a year ago, Neil Gorsuch said at his confirmation hearing that Brown was a “seminal decision that got the original understanding of the 14th Amendment right.”
This was an uncontroversial proposition for nominees for 60 some years, and even judges who might grumble in private about Brown’s originalist flaws or its methodology didn’t feel the need to perform their doubts before the Senate Judiciary Committee. Until now.
Two weeks ago, Wendy Vitter, who Trump nominated to the U.S. District Court for the Eastern District of Louisiana, refused to answer a question from Sen. Richard Blumenthal as to whether Brown v. Board “was correctly decided.” “I don’t mean to be coy,” she said, “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.” Vitter said Brown was “binding” and that she would “uphold it” from the bench but also insisted that “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.”
On Wednesday, another Trump nominee, Andrew Oldham, took the same position as Vitter. Oldham, who Trump nominated for a seat on the 5th U.S. Circuit Court of Appeals, insisted at his confirmation hearing that the canons of conduct precluded him from discussing the merits of Brown.
Oldham cited Justice Ruth Bader Ginsburg’s rule from her own confirmation about offering “no forecasts, no hints” about cases likely to come before her to make the novel claim that he could not discuss the merits of any case ever—even cases that will likely never come before the courts again because they are considered settled law. In response to this reply, Blumenthal looked incredulous. “I can’t believe that you just gave me that answer,” he said.
Blumenthal’s incredulity is warranted. Neither Justice Ginsburg nor any pre-Trump judicial nominee in recent memory has given such an answer. Even if you believe nominees have spent decades telling polite lies about the enduring importance of Brown, the fact that we are now dispensing with those polite lies is extraordinary.
But pretend for a moment that Vitter and Oldham aren’t simply distorting the “Ginsburg Rule” to develop a blanket admonition against saying anything about anything. Are Vitter and Oldham suggesting they may not discuss Brown because they believe it’s conceivable that a case questioning its prohibition on de jure racial segregation may come before them? Shouldn’t we find out what that case is?
Preposterous legal theories crawl out of the fever swamps when they find their way into the courtrooms of federal judges who reject bedrock legal principles. As the Trump administration continues its all but unimpeded march to appoint as many bloggers, non-practicing lawyers, and— increasingly, it seems—mimes as possible to the federal bench, ferreting out their fringiest views becomes an even greater imperative. And because the pace of confirmations has not merely accelerated but become the raison d’être for continued support of the Trump presidency, we should be even more vigilant in our quest to determine what these barely vetted candidates really believe.
If nominees refuse to give their views about whether Brown was correctly decided, will they also refuse to give their views on Dred Scott, which refuted the very humanity of black Americans? What about the internment of Japanese Americans, which the court held lawful in Korematsu but has since been recognized as one of the most shameful moments in American political or legal history?
Judges, especially district court judges, also have to deal with stubborn things called facts. A nominee who accepts conspiracy theories and rejects science is not qualified to do the basic job of weighing evidence. Senators can and should inquire whether a nominee believes the overwhelming scientific evidence that climate change is manmade and rejects the completely baseless assertion that there is widespread voter fraud in our elections. Does the nominee believe in evolution or does she believe The Flintstones was a documentary? Is the nominee precluded from commenting on science because it might come up in a case before them?
The answers to these questions should not be controversial. But in the Trump era, facts are met with “alternative facts,” Islamophobia and xenophobia become the basis for public policy, and white supremacy continues its creep into the mainstream. Since the first orders blocking the travel ban on Jan. 28, 2017, the federal judiciary has been a bulwark against these pernicious forces. But Trump and the ultraconservative ideologues to whom he has outsourced his nominations threaten to undermine those protections as they confirm judges at record rates. Democrats can’t filibuster Trump’s nominees, and Senate Judiciary Committee Chairman Chuck Grassley’s decision to selectively ignore the long-standing “blue slip” tradition—whereby senators from a nominee’s home state can block a hearing by withholding their endorsements—Democrats have lost all but one tool for stopping the worst of the worst from receiving lifetime appointments. All Democrats can do at this point is subject nominees’ records to close scrutiny and aggressively question them at hearings to expose their most radical views and/or lack of qualifications. But this strategy—which has forced the withdrawal of three of Trump’s most controversial nominees—only works when the public takes notice and puts pressure on the few Republicans willing to defy the administration.
The egregious, the unbelievable, and the heartbreaking continue to occur at unprecedented and accelerating rates. With each new outrage, a little more fatigue sets in and a little more awfulness gets normalized. Some of these outrages may die with the midterms, others with the 2020 election. But long after Trump has ceased to be president, his confirmed judges will affect the course of American law for generations, dragging off-the-wall views out of anonymous blogs and closed-door speeches and into the nation’s courtrooms.
It’s frightening and destabilizing to watch ridiculous notions about pregnant migrants and transgender service members make their way into the legal discourse. But let’s remember to pay careful attention as well to what’s fallen out of the legal discourse under the pretextual guise of neutrality and sobriety. Basic ideas about equality and race are slipping out of the canon of universally accepted legal truths. That shouldn’t be met with silence.
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