Since the 1980’s the one question a person nominated to be a federal judge would suavely avoid answering was, was correctly decided. The main reason they would not answer and the one even critics would agree was appropriate, was because it likely was a future case they would have to render judgment on. Now there is a new question that Trump judicial nominees are suavely avoiding answering with HORRIBLE ramifications if history is repeating itself. It should raise the question in the mind of all Americans committed to equality, what’s up with the Trump Judges???
The first sign of trouble to come occurred in 2017 when Trump Judge Supreme Court Justice Nominee, Neil Gorsuch, refused to say during his Senate confirmation hearing whether or not he agreed with the Supreme Court’s landmark 1954 Brown v Board of Education decision. Gorsuch would only say that the decision was “a correct application of the law of precedent.” After the second round of questioning, he finally relented, saying, “We’re on the same page on Brown v. Board of Education, Senator. It’s a great and important decision.” Gorsuch’s hesitation was a surprise because Supreme Court Justice Samuel Alito, a conservative judge who was the last Justice appointed before Gorsuch, said at his confirmation hearing that the Brown decision was “one of the greatest, if not the single greatest thing that the Supreme Court of the United States has ever done.”
Conservative legal guru, one of the most conservative Justice’s to ever serve on the Supreme Court, and the man Gorsuch was replacing, the late Supreme Court Justice Antonin Scalia, wrote that Brown was correctly decided in its reliance on the 14th Amendment. Gorsuch’s hesitation was not only a surprise but a sign of the potential turmoil that Trump Judges would bring to America’s federal bench.
With the rare exception of Trump Judge Supreme Court Justice Brett Kavanaugh, who said during his September 2018 confirmation hearing that the decision was “inspirational.” Expressing his reverence for the decision by saying “ The unanimity that Chief Justice [Earl] Warren achieved, which is a great moment, the fact that it lived up to the text of the Equal Protection Clause, the fact that it understood the real-world consequences of segregation on African-American students who were segregated.” Trump Judges are sending the signal that they will not be bound by any legal precedents. Neomi Rao, the woman selected to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals, also declined last month to answer the question of the correctness of Brown: saying that it was “not appropriate” to comment on the “correctness of particular precedents.”
The first Trump Judge to refuse to say Brown was correctly decided was Wendy Vitter, a Louisiana lawyer nominated for a federal judgeship in April 2018. She has been followed by many more Trump Judges such as:
Mark Norris-As a state senator, Norris pushed through a bill that made it much harder for cities to remove monuments honoring the Confederacy or the founder of the KKK. He also led an effort to prevent any Syrian refugees from being resettled in Tennessee.
Kyle Duncan — Duncan defended North Carolina’s omnibus voter-suppression law, whose provisions were found by the Fourth Circuit found to “target African Americans with almost surgical precision.” He also defended a restrictive voter ID law in Texas that a judge concluded had been adopted with the intent to discriminate.
Kenneth Lee — Lee wrote that Congress lacks the constitutional authority to address states’ racially discriminatory prohibitions on voting against formerly incarcerated people because he believes the prohibitions are not racist.
Michael Truncale- Truncale called President Obama “a un-American imposter.” He also wrote that we need in-person voter ID laws-which disproportionately disenfranchise people of color-because “voter fraud makes a mockery of our elections,” but admitted under oath that he had no research or personal experience to back up that claim.
Eric Murphy- Murphy defended Ohio’s disenfranchising voter purge system, which disproportionately harms people of color, and even helped persuade the U.S. Justice Department to reverse its position in that case from opposing the law to supporting it.
Andrew Oldham & J. Campbell Barker- Oldham and Barker were part of the Texas legal team that successfully maneuvered to get their lawsuit challenging DAPA before a judge who had made inappropriate and political statements about immigration from the bench.
Ada Brown- A graduate of HBCU Spelman College and one of only two African American state appellate jurists in Texas.
According to the The Leadership Conference on Civil and Human Rights a total of 27 Trump Judge District and Appeals Court nominees have refused to say Brown was correctly decided. All of them have one thing in common they are all members of the Federalist Society, an organization of legal conservatives whose legal philosophy is belief in the literal textual interpretation of the constitution. Meaning the constitution does not change with time, things that did not exist when the constitution was written in the 1700s but exist today are not covered by the constitution.
Any Trump Judge who refuses to say Brown was correctly decided should send atomic level shockwaves throughout America!!! The legality question of racial segregation and discrimination has been SETTLED NEVER TO BE QUESTIONED AGAIN!!!! By the American Constitution, it’s ILLEGAL!!! Trump Judges who won’t clearly say that imply that it could be a question again before them, and therefore they are not sure how they would rule. Combine this with the fact all Trump Judges are Federalist Society adherents, so its possible the reason they can’t answer that Brown was correctly decided because according to their legal philosophy of originalism they may think it was not!
The desegregation and equality produced by Brown and the Civil Rights Movement were thought to be as certain as death and taxes in America. They now could fall victim to conservative legal philosophy. In 2007 the Supreme Court voted 5 to 4 to invalidate programs that used race as a factor in assigning studentsto schools. Chief Justice John G. Roberts Jr. wrote that classifying children by race for desegregation was constitutionally no different from classification by race for segregation. Justice Anthony M. Kennedy, who retired in 2018, was the 5 thvote creating the majority to invalidate the programs, but even he said he could not go along with Roberts’s broader pronouncements. “Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution,” Kennedy wrote.
Justice Stephen G. Breyer wrote in his dissent “The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown,” “To invalidate the plans under review is to threaten the promise of Brown.” Justice John Paul Stevens, who has since retired, declared: “The Chief Justice rewrites the history of one of this court’s most important decisions.” Fortunately, Justice Gorsuch’s hesitated affirmation and Justice Kennedy’s replacement, Justice Brett Kavanaugh full-spirited affirmation that Brown was correctly decided means desegregation hangs on by a thread. But the boat-load of Trump Judges that are filling up the appeal and lower courts could apply enough judicial ruling pressure to break that single thread. Unfortunately, the originalist philosophy of Trump Judges is that the equal protection that the 14 thamendment grants CANNOT be applied for desegregation because it was added to the U.S. Constitution at a time of state-sponsored segregation.
Since they have signaled in their confirmation hearings that they are not bound by the Brown v Board of Education historic precedent. It will be left to Justice Kavanaugh to man the gate for the potential flood of rulings headed the Supreme Court’s way to overturn Brown like the current attempts taking place to overturn Roe v Wade.
There is no legal philosophy, conservative or liberal, that should justify overturning Brown v Board of Education, any legal philosophy that does is logically challenged and morally bankrupt. Before the Senate votes to confirm another Trump Judge to the federal District, Appeals or Supreme Court they should use the option that the American Constitution allows them. The Senate can legally and should vote to confirm a no law degree, non-lawyer, non-politician right or left, but a common sense American citizen to mead out justice free of legal philosophy. Justice based solely on the spirit and the living adaptable principles of one of the greatest documents in human history, the American Constitution.
Isaac Newton Farris Jr. is the nephew of Martin Luther King, Jr. and serves as Senior Fellow at the King Center. Growing up in one of the most socially and politically active families has given him a unique perspective on current events. Drop by his website for straight talk free of one-sided political spin.
Originally published at https://isaacnewtonfarris.com on May 22, 2019.