By Lisa Cylar Barrett, Policy Director at the NAACP Legal Defense and Educational Fund, Inc.
Since the Supreme Court’s momentous decision in Brown v. Board of Education 65 years ago, there has been universal consensus within the legal community that the opinion striking down de jure segregation in our schools was correctly decided. As the most important civil rights ruling in our nation’s history, it has been undebatable, affirmed time and again by judicial nominees, attorneys, scholars, and politicians on both sides of the aisle. That is, until the Trump Administration.
During his recent confirmation hearing to serve as Deputy Attorney General, Jeffrey Rosen refused to state that the Court’s unanimous opinion was rightfully decided. “I don’t think that it would be a productive exercise for me to go through the most–thousands of Supreme Court opinions and say which ones are right and which ones are wrong,” Rosen told Senator Richard Blumenthal (D-Conn). This answer is astounding for countless reasons, but chief among them is that it ignores that Brown is not just any Supreme Court precedent. It ended legal apartheid in this country, it redefined what equality means in the eyes of the law, and it touched the lives of every single American in the process.
With his disturbing answer, Rosen joined a growing chorus of Trump’s judicial nominees – starting with Wendy Vitter – who have demurred on this question. Roughly 30 nominees for the federal court have failed to unequivocally support the decision in Brown, with their responses ranging from, “I don’t think it is appropriate to comment on whether a Supreme Court case was correctly decided,” to “Brown v. Board was a landmark decision, but I cannot say if any Supreme Court decision was rightly decided.” Neither response is acceptable. Brown, like Marbury v. Madison, is an essential part of this country’s legal canon.
The refusal to acknowledge Brown serves as a dog whistle. It’s a signal of a candidate’s amenability to reassessing key tenets of our democracy. It is dangerous that nominees for lifetime appointments to our federal courts would be unwilling to acknowledge and affirm Brown.
But Rosen is not a judicial nominee. He would serve in the second-highest position at the Justice Department and if confirmed, his job will be to enforce the law, including Brown. The Deputy Attorney General is tasked with the day-to-day management of the department, including overseeing the Solicitor General’s Office and the Civil Rights Division. How can we trust Rosen to enforce our nation’s civil rights statutes if he is unwilling to affirm the bedrock opinion upon which they are based?
At his hearing, Rosen said, “I have views about lots of Supreme Court cases, but I’m not being nominated for this position to be the Solicitor General.” If Rosen is willing to concede that the Solicitor General’s view on Brown would be relevant, shouldn’t the views of the person to whom the Solicitor General reports also be germane?
Ultimately, it’s irrelevant whether Rosen is being considered for a position as a line attorney or in the highest echelons of Justice Department leadership. The rule of law remains a crucial pillar of our society, now and always. If he cannot affirm this landmark decision, he has no business serving in any role at the department or anywhere else in the federal government.
Chief Justice Earl Warren wrote in the Brown opinion that, “in the field of public education, the doctrine of ‘separate but equal’ has no place.” Sixty-five years later, it should be axiomatic that the doctrine of “separate but equal” has no place in any field.