AILSA CHANG, HOST:
There was a time not that long ago when this was the easiest question you could throw at a judicial nominee during a confirmation hearing. Was Brown v. Board of Education correctly decided? Over the decades, the 1954 ruling has become one of the most settled, most noncontroversial cases ever decided by the Supreme Court. It's treated almost as a throwaway question during a confirmation hearing. That is until recently.
President Trump's nominees have begun to dodge questions about whether Brown was correctly decided. This is a pattern Dahlia Lithwick writes about in a recent article in Slate. And she joins us now to talk about what this pattern could mean. Welcome.
DAHLIA LITHWICK: Thanks, Alisa.
CHANG: You write that it used to be unthinkable to evade a question about whether Brown v. Board was correctly decided. And just to remind people, this ruling stood for the idea that racial segregation in public schools is unconstitutional. Just how recently was it unthinkable to evade a question about Brown?
LITHWICK: Well, even Neil Gorsuch at his confirmation hearing just a year and a half ago was pretty voluble in saying of course it was correctly decided and Sam Alito before him and John Roberts before him. But I think it was just kind of a gimme that everybody right up until Neil Gorsuch said of course this was correctly decided - next question.
CHANG: How are you seeing President Trump's most recent nominees handle questions about Brown v. Board? What's the line you often hear?
LITHWICK: Well, this started about a year ago. And I think the first version of it comes from Wendy Vitter. She is nominated by Donald Trump for a seat on the lower court in the Eastern District of Louisiana. And she says, look; I don't want to be coy, but it's just not appropriate for me to talk about whether it was correctly decided. And then shortly after she did it, Andrew Oldham, another nominee, did it. Fast forward to a year later, and we're now hearing it - I think it's been now done 11 times almost verbatim.
CHANG: And what ultimately is wrong with that in your opinion?
LITHWICK: Well, I think the Senate has this advise and consent role. They have a constitutional duty to vet judges. The way that's principally done is by asking hard questions about how judges think about the law. There's a lot of yardage between saying, how are you going to rule in that DACA case? That would be inappropriate. There's something entirely different about saying, I'm trying to get a sense of how you think about your job and how you think about doctrines. So tell me a little bit about cases, particularly cases that are kind of set in amber.
CHANG: If cases like Brown v. Board are set in amber, what's the value of even asking the question?
LITHWICK: Well, that is the right question. And I think there's a cynical answer, which is, look; it's just performance art, right? I think it's probably worth the caveat that if that's the case, if this was just always what we did, then there's some signaling - an important signaling - when you suddenly decline to do it.
CHANG: Do you have any reason that any of these nominees that have evaded the question of Brown v. Board being correctly decided - do you have any reason to believe that they would be in support of overturning Brown v. Board?
LITHWICK: I think that the real attempt here is if you decline to answer questions about Brown v. Board, it becomes internally logical to also declined to answer questions about Roe, which is back on the table. And so the way to sort of elide that conversation is to say, I won't talk about any of those precedents, and I won't talk about Brown. So it looks really principled, but it's a way of moving the goalposts about what you won't talk about.
CHANG: Dahlia Lithwick is a senior editor at Slate. Thank you very much for joining us.
LITHWICK: Thank you for having me.
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