Originalists can and do support Brown v. Board, and it's important to understand why.
For my sins, while filling in footnotes for law review articles, I sometimes listen to Senate hearings on judicial nominations. With the Kavanaugh hearing now scheduled for September 4, here are some thoughts on Democratic Senators’ characteristic questions and lines of attack. Expect to see them, because many Senators ask the same questions, regardless of the nominee.
Senator Richard Blumenthal (CT) — Blumenthal asks almost every candidate whether Brown v. Board of Education is rightly decided. He is trying to put the nominees in a no-win situation. If they follow the most plausible reading of canons of judicial ethics as well as some previous Supreme Court nominees and decline to opine on Brown, Blumenthal denounces them and sometimes insinuates they cannot be trusted on matters of race. If they answer that Brown is sound, he then asks about whether Roe v. Wade is correctly decided.
In my view, Kavanaugh should note this dilemma and Blumenthal’s own past follow-ups in declining to answer the Brown question. He might use the opportunity to talk about why sometimes law has bright line rules even if applying them in particular extreme instances seems silly to the layperson.
Senator Richard Durbin (IL) — Durbin is quite obsessed with the Federalist Society and sometimes impugns nominees for their association with it. In my view Kavanaugh should emphasize the society takes no positions on Supreme Court cases or on any legal policy. It is thus less ideological as an organization than the ABA, which does take policy positions, including supporting a constitutional right to abortion. Speaking at Federalist Society events or even being a member of the Society does not commit you to particular positions. Indeed, members of the society disagree on most conceivable newsworthy issues that would come before a justice.
At a hearing previous to the current Congress, Durbin has also assailed originalism, because he says that the Three-Fifths Clause in the original Constitution treated slaves as less human than whites, making them count only 60 percent of other citizens for census purposes. Of course, the legal response here is that the originalism today means following the Constitution as amended and the Three-Fifths Clause has long been effectively eliminated. But the historical response is that South wanted to count slaves fully for the census, because that would have increased their voting power. Indeed, those opposing slavery understood the Three-Fifths clause to be “the slave power” responsible for electing pro-slavery Presidents by inflating the electoral votes of states where slaves where prevalent. The real evil was slavery itself and the denial of equal suffrage by certain states—matters that were ultimately exposed as in tension with the free and commercial society that the Constitution created.
Senator Amy Klobuchar (MN) — Klobuchar asked Neil Gorsuch whether, as an originalist, he would deny the ability of women to be President, given that the Constitution refers in many places to the President as “he.” But evidence from the Bibles used at the time and indeed from the Constitution itself in its extradition clause, shows that the term “he” could apply generically to both males and females. Moreover, the express qualifications for being President in Article II include no requirement of maleness. As I have noted, Martha could have succeeded George had the electors so chosen. But Kavanaugh could also point out that those understanding the Constitution in contemporaneous terms might be forced to come to a different conclusion, since today many more people insist that the term “he” exclusively refers to a male. Klobuchar’s question thus presents an excellent opportunity for a defense of originalism, which Gorsuch in one of his rare lapses at the previous hearing did not take.
In any event, Kavanaugh and other nominees should be forceful, albeit respectful, in their responses to such hostile questions. It is not as if they are likely to win any Senators over by pulling their punches.