In 1954, the Supreme Court unanimously ruled to abolish school segregation in Brown v. Board of Education. Yet, according to Mother Jones, when Neomi Rao appeared before the Senate Judiciary Committee for a hearing on her nomination to the DC Circuit Court of Appeals, she would not say whether she thought Brown had been decided correctly.
When Senator Richard Blumenthal (D-Conn.) asked Rao if the court had made the right decision in Brown, she answered, “As a judicial nominee, I think it’s not appropriate for me to comment on the correctness of particular precedents.” Although Blumenthal pressed her for a yes or no answer, she would only answer that Brown is “an incredibly important decision of the Supreme Court”.
She is not alone in her vague answers. In the past year, at least 10 Trump nominees to the federal court have refused to offer an opinion on Brown. One such nominee is Wendy Vitter, who told the judiciary committee in April, “I don’t mean to be coy, but I think I get into a difficult, difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with.”
Before Trump became president, a judicial nominee’s refusal to endorse Brown would have been inconceivable.
“Rao’s refusal to acknowledge that Brown was rightly decided is a serious flouting of democratic norms and a judicial dog whistle,” says Todd A. Cox, the NAACP Legal Defense and Educational Fund policy director, “signaling that Brown, its legacy, and all the progress flowing from it are potentially up for renegotiation.”
The last judicial nominee to suggest Brown was anything but universally accepted was the failed Supreme Court nominee Robert Bork. After Bork’s death in 2012, New York Times columnist Lisa Greenhouse wrote “the nominee had violated a cardinal rule of modern judicial confirmation hearings, which is that Brown v. Board of Education is beyond debate.”
Blumenthal has questioned 30 Trump nominees about Brown, and at least 10 of them refused to answer. “I’m mystified, frustrated, and frankly outraged that they would leave any doubt that Brown v. Board of Education was correctly decided,” he said.