LULU GARCIA-NAVARRO, HOST:
This past Friday marked the 65th anniversary of the landmark Supreme Court decision Brown v. Board of Education. That's the case that declared racial segregation in public schools unconstitutional. One day before that anniversary, the Senate confirmed Wendy Vitter's appointment to the federal bench. During her confirmation hearing, Vitter was asked about the Brown v. Board decision.
(SOUNDBITE OF HEARING)
RICHARD BLUMENTHAL: Do you believe that Brown v. Board of Education was correctly decided?
WENDY VITTERS: Senator, I don't mean to be coy. But I think I get into a difficult, difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with.
GARCIA-NAVARRO: More than two dozen of the Trump administration's judicial nominees have declined to affirm the ruling. Most are still pending. But some like Vitter have already been confirmed by the Senate. Paul Butler is a former federal prosecutor. And he's now a professor at Georgetown University Law School. Welcome.
PAUL BUTLER: Great to be here.
GARCIA-NAVARRO: So Brown v. Board is considered the law of the land. There's actually a history of right-leaning nominees publicly supporting Brown v. Board, isn't there?
BUTLER: Absolutely. So Chief Justice Roberts said that Brown v. Board of Education is one of the bedrocks of our democracy. He compared it to Marbury v. Madison. That's the case that established the court as an equal branch of government. So Brown is about our democracy. And in the view of critics of these judicial appointees who refuse to express a point of view, we don't know whether they would vote to overturn Brown. In a sense, overturning Brown would be like overturning America.
GARCIA-NAVARRO: So even if the issue of segregation itself is not relitigating, what is the effect that a group of federal judges who do not believe that Brown was correctly decided might have on the issue?
BUTLER: I think the concern about judicial nominees refusing to answer whether they think Brown is correctly decided raises two important issues. The first is, do they think that Jim Crow segregation is constitutional? And the other is, do they respect precedent, the cases that have come before? And that has implications for issues like abortion and affirmative action.
GARCIA-NAVARRO: I guess it's also important to note that President Trump's nominee for deputy attorney general to replace Rod Rosenstein refused to answer the question, too. What might that mean for an employee of the Justice Department?
BUTLER: So the Justice Department has the responsibility of enforcing the law, including enforcing civil rights laws. And if people who are charged with enforcing settled law are unwilling to say whether they respect that law, that's a real concern.
GARCIA-NAVARRO: How can we see the shift in light of, say, another piece of settled law that is receiving a lot of attention now? And that is Roe v. Wade.
BUTLER: So there was an important case decided this week that didn't have anything to do with abortion. It's called Franchise Tax Board of California v. Hyatt. Hyatt is a very technical case about sovereign immunity. The question was whether a state can face a private lawsuit in another state's court without its consent. So in a sense, it's like one of the 150 cases the court considers every year. It's very technical. It doesn't have far-reaching implications. In another sense, in this political and legal climate, it's a profound case because what the conservative majority did in Hyatt was to overturn precedent that was 40 years old. Justice Clarence Thomas wrote the majority opinion. He barely bothered to explain why the court was overturning this very old precedent. He just said that precedent isn't an inexorable command. And since we know that the five conservative Justices all have major reservations about Roe v. Wade, the only way that one of those justices might vote to uphold Roe is based on their respect for precedent. And the concern that some people have about this case decided this week, the Hyatt case, is that those five justices don't respect precedent enough to, for example, affirm Roe v. Wade.
GARCIA-NAVARRO: Is the concern that a lot of the settled law, that you describe is making America what it is, is at risk?
BUTLER: Reality is that right now the Supreme Court has a profoundly conservative majority. And the Supreme Court also has the power to change day-to-day life in this country. The court did that in Brown v. Board of Education. The court did that in Roe v. Wade. And in five votes, the current court could undo all of that.
GARCIA-NAVARRO: Paul Butler is a professor at Georgetown University Law School. He's also the author of the book "Chokehold: Policing Black Men." Thank you very much.
BUTLER: Always a pleasure.
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