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One telling measure of Democrats' desperation to find reasons for opposing Neil Gorsuch's nomination to the Supreme Court is the extent to which they have misrepresented his statements regarding Brown v. Board of Education, the 1954 decision that said racial segregation in public schools violates the 14th Amendment's guarantee of equal protection. On March 27, during a meeting at which the Senate Judiciary Committee discussed Gorsuch's nomination, Sen. Dianne Feinstein (D-Calif.) claimed "he wouldn't say" when asked whether he "support[ed]" Brown. On CNN yesterday, Sen. Richard Blumenthal (D-Conn.) said he had "asked [Gorsuch] repeatedly to say whether he agreed" with Brown, and "he refused to say whether it was correct or not." The New York Times quotes Sen. Mark Warner (D-Va.) as saying, "My understanding was he wouldn't even vouch for Brown v. Board of Education."
Warner's understanding is wrong, and so are Feinstein and Blumenthal's recollections. Blumenthal first asked Gorsuch about Brown on March 21, the second day of his confirmation hearing:
Blumenthal: Do you agree with the result in Brown v. Board of Education? Gorsuch: Senator, Brown v. Board of Education corrected an erroneous decision—a badly erroneous decision—and vindicated a dissent by the first Justice Harlan in Plessy v. Ferguson where he correctly identified that separate [but equal] to advantage one race can never be equal. Blumenthal: And do you agree with the result? Gorsuch: In Plessy? No. Blumenthal: Do you agree with the result in Brown v. Board? Gorsuch: Brown v. Board of Education, Senator, was a correct application…of the law and precedent. Blumenthal: By the way, when Chief Justice Roberts testified before this committee and he was asked by Senator Kennedy, quote, "Do you agree with the Court's conclusion?"— meaning in Brown, that the segregation of children in public schools solely on the basis of race is unconstitutional—Judge Roberts answered unequivocally, quote, "I do." Would you agree with Judge Roberts? Gorsuch: Senator, there's no daylight here. Blumenthal: OK… Gorsuch: Justice Harlan got the original meaning of the Equal Protection Clause right the first time. And the Court recognized that belatedly. It's one of the great stains on the Supreme Court's history that it took it so long to get to that decision.
In short, Gorsuch said Brown was "a correct application of the law and precedent," which means it was properly decided; he said his position on Brown was the same as Chief Justice Roberts'; and he said Brown rightly vindicated Harlan's view of the Equal Protection Clause. That seems pretty unequivocal to me. But it did not satisy Blumenthal, who repeated his question the next day:
Blumenthal: I want to go back to some questions I asked you yesterday, which perhaps you didn't get a chance to clarify. And I want to give you that opportunity. You recall we were talking about Brown v. Board of Education. And you said, I believe, that you agree with that decision. Do I have it correctly? Gorsuch: Senator, it is a seminal decision of the United States Supreme Court, interpreting the 14th Amendment, maybe one of the great moments in Supreme Court history. Blumenthal: You said, and I quote, that it "corrected an erroneous decision, a badly erroneous decision," end quote, and you called it, quote, "a correct application of the law of precedent," end quote. And you said also that it vindicated a dissent, quote, "that got the original meaning of the Equal Protection [Clause] right." That sounds to me like you agreed with the result in Brown v. Board of Education. Gorsuch: Senator, you can characterize it however you want. I've said what I said….I stick by what I said. Blumenthal: So unlike Justice Kennedy and Justice Roberts, Chief Justice Roberts, in their confirmation hearings, you will not say that you agree that it was the right result. Gorsuch: Senator, I've said it's a seminal decision of the United States Supreme Court that corrected a badly erroneous decision. It vindicated the original understanding and the correct original meaning…of the 14th Amendment. It is one of the shining moments in constitutional history in the United States Supreme Court. That's what I've said. Blumenthal: So why will you not say that you agree with the result? Gorsuch: Senator…I'm not sure what we're arguing about here. Blumenthal: We're not arguing. I'm just asking why you are so averse to saying "yes, it was the right result"? Gorsuch: I'm saying, as a judge, it was a seminal decision that got the original understanding of the 14th Amendment right and corrected one of the most deeply erroneous interpretations of law in Supreme Court history: Plessy v. Ferguson, which is a dark, dark stain on our court's history. And it took way too long for the United States Supreme Court to get the 14th Amendment right. It's an embarrassment in our history. That's what I've said, Senator. Blumenthal: And Chief Justice Roberts, in response to Senator Kennedy's question, quote, "Do you agree with the court's conclusion that the segregation of children in public schools, solely on the basis of race, is unconstitutional?" [said] quote, "I do." You said yesterday, and I'm quoting you now, that there's "no daylight" between you and Justice Roberts. Gorsuch: Respectfully, I don't see any daylight between what I've just said and what you've just quoted from the chief. Blumenthal: OK. Gorsuch:I just don't, Senator. We're on the same page on Brown v. Board of Education, Senator. Blumenthal: OK. Gorsuch: It's a great and important decision.
Blumenthal apparently was frustrated by Gorsuch's failure to phrase his agreement with Brown (and with Blumenthal) in exactly the way that Blumenthal preferred. But these exchanges leave no doubt that Gorsuch believes Brown, which he called "a great and important decision" and "one of the shining moments in constitutional history," was correctly decided. In fact, that was Blumenthal's understanding at the time. The next day, the fourth day of the confirmation hearing, Blumenthal said, "Yesterday, when I asked Judge Gorsuch about Brown v. Board of Education, he said in effect that that decision was correctly reached, that the result was correct. He agreed with it." Yet 11 days later, there was Blumenthal on CNN, insisting that Gorsuch "refused to say whether it was correct or not."
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