Two controversial judicial nominees, who declined to say during their confirmation hearings whether the landmark Supreme Court opinion barring segregation in public schools was correctly decided, were narrowly approved out of the Senate Judiciary Committee on Thursday.
The 11-10 vote, divided down party lines, advances the nominations of Wendy Vitter and Andrew Oldham to the Senate floor.
The vote comes as Senate Judiciary Chairman Chuck Grassley is leading the charge to reshape the face of the judiciary. So far the Senate has confirmed 39 judicial nominees: Neil Gorsuch for the Supreme Court, 21 appeals court nominees and 17 district court judges.
Vitter and Oldham’s nominations were vigorously debated at an earlier hearing last week that happened to fall on the 64th anniversary of the release of Brown v. Board of Education.
At her confirmation hearing in April, Sen. Richard Blumenthal, a Connecticut Democrat, asked Vitter about Brown v. Board of Education. Vitter said she didn’t mean to be “coy” but that she would get into a “difficult, difficult area when I start commenting on Supreme Court decisions – which are correctly decided and which I may disagree with.”
She went on to say that if she were confirmed to the US District Court for the Eastern District of Louisiana, she would be “bound by Supreme Court precedent.
Democratic senators noted that Chief Justice John Roberts and Supreme Court Justice Anthony Kennedy both testified in their confirmation hearings that Brown was correctly decided.
“What does it say about a nominee” that could not say “clearly and unambiguously” that Brown v. Board of Education was correctly decided? the panel’s top Democrat, Sen. Dianne Feinstein asked. Feinstein said the two nominees are not “within the legal mainstream.”
But Republicans suggested the Democrats were engaged in a ploy meant to smear the names of nominees who were simply following the rules of judicial ethics meant to ensure impartiality.
“I speak for all my colleagues when I say there is no question that this opinion was correctly decided,” said Grassley, who called it “very unfair and simply inaccurate” to suggest the nominees “somehow disagree with Brown.”
Judicial conservatives argued Vitter declined to answer the Brown question because she believes that judges should maintain their impartiality by declining to put forward personal opinions on particular cases.
They pointed to Vitter’s testimony later in the hearing, when Sen. John Kennedy, a Louisiana Republican, asked the question a different way.
“I am not asking about precedent,” he said. “I just want to know about what you think about the social policy of having schools, Ms. Vitter, segregated by race, even if they are equal. Can we agree that is immoral?”
Vitter said, “Yes.”
Vitter serves as the general counsel of the Roman Catholic Archdiocese of New Orleans and is married to Louisiana’s former Republican senator, David Vitter.
Oldham, 39, who currently serves as general counsel to Texas Gov. Greg Abbott, is a nominee up for a seat on the powerful 5th US Circuit Court of Appeals. He answered the Brown question by saying that “even the most universally accepted Supreme Court case is outside the bounds of a federal judge to comment on.”
Oldham went on to say that Brown corrected “an egregious legal error” by overturning the legal policies established in Plessy v. Ferguson back in 1896 and it “abolished segregation in public schools.”
But Blumenthal persisted on Brown, asking: “Was it correctly decided in terms of what you know?”
Oldham held firm and cited that Justice Ruth Bader Ginsburg also believed a nominee should not talk about precedent.
“The canons of conduct and the line that was articulated by Justice Ginsburg when she sat in this chair before this committee, where she said that her role as a nominee was to give ‘no hints, no previews and no forecasts,’ applies just as much to me,” Oldham said.
“When inferior court judges come before this committee with a list of cases that they like and a list of cases that they don’t, it turns the structure of Article III of the Constitution on its head,” he said.
After a pause, Blumenthal responded, “I can’t believe that you just gave me that answer.”