May 30, 2018
Page 13
O PINION
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Court Nominees Threaten Brown v. Board
The people
willing to do
Trump’s bidding
d erriCk J ohnson
In March, Linda Brown,
who as a third-grader lent
her name to the fight to dis-
mantle school segregation,
passed away at age 75.
While systemic inequal-
ity and racial disparities
still exist, the landmark
Supreme Court ruling
in Brown v. Board of Education
changed our entire nation for the
better.
The 1954 decision not only
struck down state-sponsored seg-
regation and became a cornerstone
of our justice system; its principles
of equality and opportunity are now
foundational aspects of our democ-
racy.
If there was ever a Supreme
Court ruling that nominees to fed-
eral courts should wholly embrace,
it should be Brown. The doctrine of
“separate but equal” has no role in
today’s society.
The case was famously decided
by a unanimous Supreme Court. Al-
though the ruling was initially met
with massive resistance throughout
the South, it was precisely because
of federal judges on the lower courts
that its mandate was respected. The
decision is not about to be revisited
by any court anywhere.
Brown is not subject to debate.
Yet today, as we celebrate the
By
64th anniversary of Brown v.
Board, several of President Donald
Trump’s judicial nominees have re-
cently dared to challenge it.
Wendy Vitter, nominated to a fed-
eral district court in Louisiana, was
the first, saying at her April confir-
mation hearing, “I think
I get into a difficult area
when I start commenting
on Supreme Court deci-
sions which are correctly
decided and which I may
disagree with.”
Next came Andrew
Oldham, ironically nom-
inated to the U.S. Court of Ap-
peals for the 5th Circuit, which was
home to the unlikely heroes called
upon to enforce Brown throughout
the South. Then, four more district
court nominees refused to answer
the Brown question.
Clearly, there was another an-
swer, the right answer. All sitting
Supreme Court justices endorsed
Brown at their own confirmation
hearings.
Conservative justice Samuel Ali-
to called it “one of the greatest, if
not the single greatest thing that the
Supreme Court of the United States
has ever done.” Clarence Thomas
stated, “[Brown] is certainly one of
the cases ― even before I knew all
of the legal ramifications, it is one
that changed my life and changed
the South.”
The refusal to endorse Brown is
a powerful symbol of the intense-
ly xenophobic zealotry shared by
many Trump judicial nominees that
threatens civil rights jurisprudence
in particular and the rule of law in
general. These are lawyers on the
fringes of society who, if confirmed,
will willingly depart from widely
accepted principles and may harm
communities of color.
We know about Brett Talley, the
failed nominee to an Alabama fed-
eral court, who allegedly praised an
early leader of the Ku Klux Klan on
a University of Alabama message
board. The nation should also know
about Thomas Farr, a nominee to a
North Carolina federal court who
has ties to white supremacists and
personally engaged in activities
to intimidate black voters in order
to help segregationist Sen. Jesse
Helms win his 1990 re-election bid.
Both Farr and Kyle Duncan, who
was recently confirmed to the 5th
Circuit, appealed to the Supreme
Court to overturn the 4th Circuit’s
ruling in 2016 that North Carolina’s
voter suppression efforts targeted
African-Americans with “almost
surgical precision.”
Oldham, the other appellate nom-
inee who refused to support Brown,
also refused to answer Sen. Kamala
Harris’ question about whether vot-
ing discrimination exists today.
As deputy solicitor general in
Texas, Oldham tried to gut the
Voting Rights Act in defending the
state’s photo ID laws, which federal
courts found to be intentionally dis-
criminatory. But Trump has nomi-
nated him to the 5th Circuit, which
now covers three states with a large
percentage of residents of color.
Trump’s apparent efforts to whit-
en the federal bench are central to
reshaping the courts. Black nomi-
nees are rarely to be found among
the scores of nominees the Senate
is rushing through to confirmation.
Of some 120 nominees to lifetime
seats on the federal bench, only two
are African-American. Courts such
as the 7th Circuit, which covers Il-
linois, Wisconsin and Indiana, cur-
rently have no judges of color.
This lack of diversity comes at
a severe cost to the nation. It could
lead to the undermining of laws
that have transformed our country
and ensure democracy works for
all of us. We have seen the direc-
tion the president wants to take our
nation. A key part of making Amer-
ica “hate” again lies in stacking the
federal bench with people willing
to do Trump’s bidding ― judges
willing to rubber-stamp partisan
gerrymandering, voter suppres-
sion, inhumane immigration pol-
icies and laws that favor corpora-
tions over people.
Sixty-four years after the Su-
preme Court’s watershed decision,
our nation still has much work to
do to make sure that the promise of
Brown is realized.
We must never forget that judges
who understood their role in main-
taining the balance of power among
branches of government helped
bring about the positive transforma-
tion we have seen in our society. We
must remain cautious of any who
seek to utilize the courts to return us
to an era before Brown.
Derrick Johnson is the president
and chief executive officer of the
NAACP.
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