The Smearing of a Trump Judicial Nominee

Posted: Apr 12, 2018 4:15 PM

Did you hear the one about the 'racist' Trump judicial nominee?  Wendy Vitter, whom the president has selected to a federal District Court bench in Eastern Louisiana, declined at her confirmation hearing this week to weigh in on the correctness of the Supreme Court's landmark 1954 Brown v. Board of Education striking down segregation.  The Left-wing outrage industry -- already eager to see her defeated -- seized on the exchange to paint Vitter as a crypto-segregationist:

“Do you believe that Brown v. Board of Education was correctly decided,” Connecticut Sen. Richard Blumenthal, a Democrat, asked. “I don’t mean to be coy,” Vitter responded. “But I think I get into a difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with. Again, my personal, political or religious views I would set aside. That is Supreme Court precedent. It is binding. If I were honored to be confirmed I would be bound by it, and of course I would uphold it.”  After a pause, Blumenthal repeated the question. Vitter said: “Again, I would respectfully not comment on what could be my boss’ ruling, the Supreme Court. I would be bound by it. And if I start commenting on ‘I agree with this case’ or ‘don’t agree with this case’ I think we get into a slippery slope.”

This clip made the rounds, with liberal commentators melting down over how astonishing and amoral her response was.  Take a look at some of these headlines.  But the very same former Assistant US Attorney who many on the Left (and others) were favorably quoting earlier in the week regarding the FBI raids against President Trump's personal attorney took to Twitter to expose what he described as the "deceit" involved in launching this smear:

What Vitter was doing in this instance was resorting to -- or retreating to -- a version of the 'Ginsburg Standard,' established by ultraliberal Supreme Court Justice Ruth Bader Ginsburg during her 1993 confirmation hearings. At the time, she said she would decline to comment specifically on any cases or issues that may come before her as a justice.  Here's a contemporaneous New York Times report:

In her opening statement to the committee, which began its hearings today on the nomination, Judge Ginsburg also sought to set a clear boundary on what kind of questions she was willing to answer. She said she would not discuss specific cases or issues that might come before her. "It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide," she said. "A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process." Although such unwillingness to engage in specifics has frustrated and annoyed some senators in the past, it was clear today that it will make no difference for Judge Ginsburg, who seems bound to win Senate approval easily.

Indeed, she sailed through by a 96-3 vote.  As Ken White (aka "Pope Hat") says, "a significant number of nominees" have adopted a similar approach to answering questions about specific cases.  Vitter undoubtedly believes Brown v. Board was rightly and justly decided, as do all Americans beyond the racist fringe.  But like others before her, she chose not to go down the path of opining on the wisdom or rectitude of various Supreme Court rulings on any subject.  If there were any shred of evidence at all that she might not believe in racial integration, that would certainly be cause for serious alarm.  But her response to this question does not constitute such evidence.  Also, a conservative attorney points out that Vitter specifically says she's bound by the Brown v. Board precedent:

My strong guess is that Vitter knows that this specific decision is a no-brainer, but discerned that if she started offering her views on "easy" cases, the line of questioning would proceed to much more controversial matters like Roe, Heller, Obergefell, etc.  You may think it was a tactical error to stay silent on this narrow question in order to avoid the category entirely (others have weighed in on settled, slam-dunk cases like Brown without wading into others).  You may think that judges should be more transparent on such matters in general.  But that's not the point of this nasty attack.  The point of this nasty attack is to imply that the nominee, and the man who nominated her, are retrograde racists.  I cannot speak to the qualifications of Ms. Vitter for the position, and I happen to agree that her past anti-abortion activism and (initially) incomplete disclosures are reasonable issues for opponents to raise; conservatives would do the same if the ideological shoe were on the other foot.

But this particular smear, which has gained a great deal of attention (just perform a web search of her name), seems grossly unfair and misleading.  I'll leave you with this: The Time Magazine piece I quoted above asserted that Vitter once advanced the "false statement" that Planned Parenthood kills 150,000 American females per year.  But that claim is absolutely true if one believes that (a) each abortion ends a life, and (b) roughly half of all abortions in America target unborn females (Planned Parenthood performs approximately 300,000 abortions per year).  Each element of that belief is backed up by science.  Pro-choice or pro-abortion people may not believe that those lives ought to be legally recognized or protected, but that opinion does not change the scientific facts.  It's almost as if journalists are overwhelmingly biased on the issue of abortion.