September 10, 2019

Dear Senator:

On behalf of the 4,000 members of the National Employment Lawyers Association (NELA) and its circuit, state, and local affiliates across the country, I write to express our strong opposition to the confirmation of any judicial nominee who refuses to acknowledge that the landmark, unanimous decision in Brown v. Board of Education was correctly decided.

Over the last year, dozens of judicial nominees have declined to answer a question that countless nominees before them responded to simply and unambiguously. Those who cannot respond decisively in the affirmative to the correctness of the holding in Brown have sent a clear signal that they cannot be counted upon to protect individual civil rights, or adhere to the rule of law. A nominee who cannot affirm that “separate but equal” is a gross distortion of our founding principles is not fit to serve as a federal judge, whose responsibility it is to protect principles and individual rights that are sacred to our democracy.

The decision and the understandings embodied in Brown are at the core of our nation’s civil rights laws; separate is inherently unequal. As a senator, everyday working people are the majority of your constituents. Thus, it is incumbent upon you to oppose any nominee who cannot affirm that she or he believes that the landmark decision in Brown was correct. A nominee who cannot state that Brown was correctly decided is a nominee who has not committed that as a judge, she or he would never take us back to a time before this obvious truth was written into our laws. Even the possibility of returning to a time when Brown was not the law of the land poses a profound threat to the millions of working people across this nation who rely on the courts of our nation to ensure fairness and justice in the American workplace. Simply put, the working people who are your constituents rely upon you to ensure that the judges you confirm are committed to acting fairly when working people face illegal mistreatment on the job.

Brown, decided 65 years ago, remains one of the most vital precedents in our nation’s history. The Court ruled, unanimously and unequivocally, that the doctrine of “separate but equal” had no place in the American school system, and that the inherent inequity in race-based exclusion was necessarily unconstitutional. The decision paved the way for the Civil Rights Act of 1964 and for the passage of Title VII, a law upon which working people rely every day. These laws and the social movement that surrounded their passage brought us closer to being the nation that is described in our Constitution.

The elimination of damaging and sometimes violent workplace harassment, disparities in pay, and other forms of illegal mistreatment in the workplace arising from a worker’s membership in a protected class is far from complete. That said, much important progress has been made, and we stand firm in our unwillingness to accept a judicial nominee who does not stand on the side of that progress.

Affirming the holding in Brown does not in itself qualify someone for a lifetime position in the federal judiciary. That said, refusal to affirm this holding is surely disqualifying. This is not and should not be a partisan issue. Regardless of one’s party affiliation, the working people, school children, and others who are your constituents are counting on you to stand firm against a damaging slide backwards.

This trend towards withholding unequivocal support for Brown is both very new and alarming. The following nominees, nominated by Republican and Democratic presidents alike, and including nominees to the Supreme Court, had no hesitation in their affirmation of Brown’s correctness:

• At Chief Justice Robert’s Supreme Court confirmation hearing in 2005, Senator Ted Kennedy asked him, “Do you agree with the Court’s decision [in Brown v. Board of Education] that the segregation of children in public school solely on the basis of race is unconstitutional?” Then-Judge Roberts confirmed, “I do.”
• Justice Kavanaugh stated last year, “I think Brown v. Board of Education, as I’ve said many times before, is the single greatest moment in Supreme Court history…And it’s correct. It’s correct. It’s correct because it corrected a historic mistake in Plessy v. Ferguson.” He explained his ability to affirm Brown by stating, “There are some historical cases where there’s no prospect of that case coming back….”
• Justice Kennedy testified, “I think Brown v. Board of Education was right when it was decided, and I think it would have been right if it had been decided 80 years ago or 80 years before.”
• Justice Alito said “certainly” when asked whether he supported Brown.
• Justice Kagan testified, “I hope and I know that the principles of Brown v. Board are still relevant today…the idea of equality under law is a fundamental American constitutional value.”
• Justice Gorsuch described Brown as a “great and important decision.”

All nominees who have, to-date, refused to state unequivocally that Brown was correctly decided should be given an opportunity to clarify their testimony. Given that opportunity, those nominees who cannot affirm the correctness of Brown should not be given further consideration for a lifetime appointment as a federal judge.

Below is a list of pending judicial nominees who, as of the time of this letter, have declined to state that Brown v. Board of Education was correctly decided. We urge you, and every U.S. Senator, to uphold the importance of this fundamental civil rights ruling by voting against these nominees unless they clarify their testimony and state unequivocally that Brown was correctly decided. There must be a moral floor for a lifetime appointment to the federal judiciary.

Sincerely,

Wade B. Cowan
President
National Employment Lawyers Association

Laura M. Flegel
Legislative & Public Policy Director
National Employment Lawyers Association

Currently Pending Federal Judicial Nominees Who Declined To State That Unanimous Brown v. Board of Education Ruling Was Correctly Decided:

1. Ada Brown (Northern District of Texas)
2. Gary Brown (Eastern District of New York)
3. Steven Grimberg (Northern District of Georgia)
4. Diane Gujarati (Eastern District of New York)
5. Eric Komittee (Eastern District of New York)
6. Lewis Liman (Southern District of New York)
7. David Novak (Eastern District of Virginia)
8. John Sinatra (Western District of New York)
9. Matthew Solomson (U.S. Court of Federal Claims)
10. Mary Kay Vyskocil (Southern District of New York)