Spurred by the answer from the nominee for Deputy Attorney General, Jeffrey Rosen, concerning whether the 1954 desegregation case, Brown v. Board of Education, was “rightly decided,” one news site popular among the political Left came close to playing the race card recently.
In her column for Slate, Dahlia Lithwick first notes correctly that, of late, several judicial nominees, and now a Justice Department nominee, have given the same answer when asked about Brown; i.e., refusing to comment on any Supreme Court precedent.
It is also true that up to this point, most Republican appointees have unabashedly hailed Brown as a milestone of jurisprudence – a precedent beyond any hint of a dispute. But there’s obviously been a change in the strategy of testifying before the Senate Judiciary Committee with respect to all precedent. Dahlia hints and suggests throughout her piece that this new strategy must mean that conservative nominees are at least “open” to overruling Brown. What she doesn’t say outright but implies throughout the piece is that nominees from this President—or maybe all Republican presidents—could be, might be, just possibly are, racists willing to turn back the clock a couple hundred years if given the chance.
But, as the saying goes, Lithwick “buries the lede” by correctly diagnosing the real reason for the new reticence by nominees to opine about Brown. It shows up toward the end of her piece:
“These prospective judges don’t want to say they would overturn Roe[v. Wade], so they decline to discuss it, and then extend that logic to Brown in an effort to make it sound like principle.”
Abortion. It’s always been about abortion. Senate Judiciary Committee confirmations have for years devolved into “gotcha” questions—at least with conservative nominees—attempting to trap them into answering questions about abortion. The end game is to force them into committing to keeping Roe alive and well—unlike the babies that decision has doomed.
In case you’ve never watched a judicial confirmation hearing, the issue – and it is a continuing issue – arises like this:
Senator: “Judge, was the 1954 Brown v. Board of Education decision rightly decided in your opinion?”
Nominee: “Yes, a historic reversal of the horrible practice of ‘separate but equal’ accommodations for African-Americans. Rightly decided.”
Senator: “Well, then, how about Roe v. Wade? Was it rightly decided?”
Nominee: “Senator, I don’t wish to render an opinion about a subject matter that may come before the court in the future.”
Then the questioning deteriorates into an argument about why the nominee can discuss Brown but not discuss Roe. The questioning is never really about Brown. No Senator on the Judiciary Committee seriously believes that any court now or in the future would attempt to overrule Brown. But it is a useful question if you’re trying to either get a nominee to equate Roe’s importance as precedent with Brown’s importance as precedent, or embarrass the nominee who won’t agree. Ramesh Ponnuru from National Review explained last year why nominees for lower federal courts are right to avoid such traps.
The Left should stop complaining about the kabuki theater that judicial confirmation hearings have turned into. Their favorite Supreme Court member, Justice Ruth Bader Ginsburg, became the gold standard for refusing to be trapped into committing to how she might vote in any particular case, with her famous “no hints, no forecasts, no previews” response that has become known as “the Ginsburg Standard.”
Let’s be clear. The goal on the Left is to protect Roe at all costs. The question about Brown is the tool they use to accomplish that goal.
The implied accusation of racism leveled at conservative nominees simply isn’t true.