During a confirmation hearing in the Senate Judiciary Committee last week, Wendy Vitter, whom President Trump has nominated for a federal district court judgeship in Louisiana, refused to say whether she thought Brown v. Board of Education—the landmark 1954 Supreme Court ruling invalidating de jure segregation in public schools—was rightly decided. Connecticut’s Senator Richard Blumenthal repeatedly asked the question, but Vitter stuck by her non-answer. Vowing that if confirmed she would set aside her “personal, religious, or political views” to follow binding Supreme Court precedent, Vitter maintained that it would be inappropriate for her to comment on which Supreme Court cases were and were not rightly decided.
That non-answer did Vitter no good. Already facing tough scrutiny because of her past promotion of unsubstantiated claims about the supposed risks of abortion and birth control, Vitter’s refusal to opine about Brown added into the mix the possibility that she is a closet racial segregationist. Nonetheless, she will likely be confirmed anyway, because Republicans have maintained party discipline as they attempt to fill the federal courts with conservatives while they hold the presidency and a slim majority in the Senate.
But even assuming that Vitter survives her unforced error on Brown, it is worth puzzling over why she made it. Doing so will reveal that Vitter’s self-imposed silence on Brown may not be a mere blunder by a lackluster judicial nominee. Rather, it may have been an attempt to avoid further scrutiny about Vitter’s views about abortion.
Maybe It’s About Abortion
Vitter’s claim that her “personal, religious, or political” views would not affect her ability to apply the law impartially is superficially sensible. Law is not entirely coextensive with anyone’s personal, religious, or political views, and so following the law—whether as a citizen or a judge—inevitably means that one sometimes subordinates one’s own views. Vitter was thus on solid ground in telling the Senators what all judicial nominees say, namely, that they will apply the law faithfully, even if they do not personally approve of the law.
The problem is not what Vitter said. It’s what she refused to say. Surely she could have told Senator Blumenthal something like this: Senator, as a district court judge, I would be bound to follow Supreme Court precedent regardless of whether I think the relevant cases were rightly or wrongly decided as an original matter. Following Brown v. Board of Education would be especially easy for me to do, of course, because it is not only binding precedent but clearly correct.
Why didn’t she do that? One possibility is that Vitter is a closet segregationist, but we have no reason to think that. A better explanation is that she did not want to answer whether Brown was rightly decided because doing so would then lead to the question whether Roe v. Wade was rightly decided. And an honest answer to that question would likely cost Vitter the votes of many Democratic Senators, because Vitter has been an outspoken abortion opponent. Indeed, it is likely that President Trump nominated Vitter to the judgeship in no small part because of the strong views she has expressed about abortion.
To be sure, Vitter could have tried to distinguish segregation from abortion. Although there is ongoing debate about exactly what Brown meant, no one seriously thinks that there is any prospect that the decision will be overruled. By contrast, the Supreme Court remains closely divided on abortion. Should a vacancy open before the presidency or Senate changes hands, there is a substantial possibility that whoever fills that vacancy would cast a fifth vote to fully overrule Roe or at least to substantially cut back on abortion rights.
The continued controversy over Roe has allowed even conservative Supreme Court nominees like John Roberts and Neil Gorsuch to swear fealty to Brown even as they clam up about Roe—plausibly maintaining that the question whether to overturn Roe could come before them in a way that the question whether to overturn Brown could not.
So why didn’t Vitter walk that line? One answer might be that she was not as well coached or prepared as higher profile Supreme Court nominees. But one should not so quickly assume that Vitter simply blundered.
Given her lowly position in the judicial hierarchy, a federal district court judge would not have the opportunity to overrule Brown, Roe, or any other Supreme Court precedent. Thus, the distinction available to a Supreme Court nominee—between settled law that stands no prospect of being unsettled versus law that is settled for now but remains subject to contestation—is unavailable to a district court nominee. All Supreme Court precedents are settled law that stands no prospect of being unsettled by a district court judge. Accordingly, if Vitter had answered Senator Blumenthal’s question about Brown, she would have opened herself up to the same question about Roe.
The Relevance of Personal, Religious, or Political Views
If Vitter found herself in a tougher spot than a Supreme Court nominee, in most respects the typical nominee for a lower court judgeship faces less scrutiny than a Supreme Court nominee because of the higher stakes for the latter. But in one crucial respect, Vitter’s hearing was indistinguishable from recent hearings on Supreme Court nominations.
Using various metaphors, Republican nominees to the Supreme Court pretend to the Senators and the nation that, as Vitter put it, their “personal, religious, or political” views will not influence their judging. Similarly, Clarence Thomas said that in becoming a justice, he would “strip down, like a runner, to eliminate agendas, to eliminate ideologies.” John Roberts likened being a justice to being an umpire, stating that it would be his “job to call balls and strikes and not to pitch or bat.”
For more than a century, scholars have been debunking such claims. Judging is not reducible to politics or values, of course, but neither is it hermetically sealed off from them. People do not generally litigate where the law provides clear guidance, so the cases that make it to court involve disagreements about the facts or, with some frequency, the law. When the law itself is unclear, a judge’s background and values may affect how she or he resolves the disagreement over its meaning and application. No matter how hard they may try, judges and justices cannot strip down like runners or merely call balls and strikes. They must exercise judgment.
Revealingly, Vitter’s testimony tacitly acknowledged that the standard conservative stance at confirmation hearings is little more than a myth. When Senator Blumenthal asked Vitter whether she thought Brown was rightly decided, he was not asking her a personal, religious, or political question. He was asking a legal question. For the reasons I have discussed, Vitter had a motive to try to avoid answering Blumenthal’s question, but if she really believed the conservative party line about the irrelevance of personal, religious, and political views to the resolution of legal questions, she should have been able to answer him by referring solely to legal materials. By instead intoning the GOP mantra she gave away the game. She was saying that the question whether Brown—or any other case involving broad language like that found in the Equal Protection Clause—was rightly decided cannot be answered entirely by consulting objective legal materials. She was acknowledging that a judge’s “personal, religious, and political” views necessarily interact with the legal materials.
Luckily for Vitter, 51 GOP Senators represent constituents who share enough of her personal, religious, and political views that they will likely vote to confirm her. In so doing, however, they will also be confirming the very opposite of the claim that Vitter and more high-profile judicial nominees typically make about the irrelevance of such views to the operation of the judiciary.