Trump’s Nominees and Brown v. Board: Two Theories

(Carlos Jasso/Reuters)

Several of President Trump’s nominees to the federal courts and the Justice Department have declined to say whether they believe Brown v. Board of Education was correctly decided.

One theory to explain their silence, which I’ve advanced before, is that the nominees do not want to open the door to a discussion of what they think of other Supreme Court precedents. One school of thought holds that nominees should keep this door closed in order to protect the independence of the judiciary; and keeping it closed likely makes it easier for nominees to get confirmed. There are, of course, counterarguments, and the practice of judicial nominees has varied. During his own confirmation hearings, Antonin Scalia went so far as to refuse to comment on whether Marbury v. Madison was rightly decided. One could find the standard rationales for silence unpersuasive while also believing they’re behind what Trump’s nominees are saying and not saying.

Dahlia Lithwick advances a different theory in Slate: Trump’s nominees are plotting to overturn Brown. “[J]udicial nominees are carving a path toward saying that they needn’t be bound by any precedent, and also that every precedent is now on the table. . . .  [T]he newfound refusal to approve of the core logic of Brown should signal to us that the issue is somehow a live one.”

I’ll leave it to readers to decide which theory is the more economical, plausible, and sane interpretation of the available evidence.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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