Even before she flubbed her response to what should have been an easy question during her Senate confirmation hearing last week, Wendy Vitter’s nomination for a lifetime appointment as federal judge in New Orleans was contentious. It was always going to be.
Vitter refused to say whether the Supreme Court’s landmark desegregation decision, Brown v. Board of Education, had been properly decided, and her non-response lit up the Internet.
"I don't mean to be coy," she said, "but I think I can get into a difficult, difficult area when I start commenting on Supreme Court decisions — which are correctly decided and which I may disagree with." Why she’d even bring up the possibility of disagreement when Brown v. Board was at issue is beyond me.
But the truth is that this response isn’t, and shouldn’t be, the most controversial thing about her nomination.
Vitter is a onetime top prosecutor with the Orleans Parish District Attorney’s Office, and more recently has been general counsel for the Archdiocese of New Orleans. Yet her background earned her the American Bar Association’s lowest qualified rating, and some members rated her as "unqualified."
Her appointment carries the whiff of insider politics. Vitter is married, of course, to former U.S. Sen. David Vitter, who left Congress last year but still holds plenty of sway among Louisiana Republicans — including the state’s two current senators, both of whom he worked to elect and both of whom get to vote on Wendy Vitter’s confirmation.
Although required to do so, she didn’t initially disclose some speeches she’d given, including some that highlighted her staunch and often bluntly phrased opposition to abortion. Her public advocacy has come under intense scrutiny from abortion-rights advocates, given that abortion-related cases often wind up in federal court. Judicial nominees always say that they’ll put aside their personal feelings and apply the law, and Vitter did the same last week, but her outspokenness and demonstrated passion on the issue make her past activity — including the events she didn’t originally disclose —fair game for intense scrutiny.
The reaction to her Brown v. Board answer was overblown, but it compounded these preexisting problems.
A generous interpretation of what happened is that she went in determined to stick to her message that she wouldn't apply her personal beliefs — a standard strategy— and didn’t realize in the moment that the situation called for an acknowledgement of what’s now accepted as a both a fundamental legal principle and an undeniable American value. She said she didn’t mean to be coy, but that’s exactly what she was being.
It was an amateur move, particularly since she shouldn’t have been blindsided by the question. The Connecticut Democrat who posed it, U.S. Sen. Richard Blumenthal, had asked now-Supreme Justice Neil Gorsuch the same thing during his confirmation hearing, and Gorsuch handled it much more deftly. He said that the decision “corrected an erroneous decision, a badly erroneous decision” — specifically the Plessy v. Ferguson decision, which held that separate facilities are not inherently unequal. That’s how it’s done.
Odds are that none of this will keep Vitter from getting confirmed. Republicans still hold an ever-so-slight edge in the Senate, and they and President Donald Trump are hell bent on stacking the courts before they might lose it. They are looking for candidates with conservative philosophies, and Vitter’s public record provides plenty of evidence that they’ve got one here.
As for fitness, Trump has nominated others who clearly fall short, and about the only Republican senator who’s uttered a peep has been Louisiana’s John Kennedy, a member of the Judiciary Committee. Yet he and his fellow Louisiana senator, Bill Cassidy, are on board. So is New Orleans Mayor Mitch Landrieu, a high-profile Democrat who sent a letter of support, which should give her a little bit of cover.
This is just one more example of elections having consequences. And in the case of these judicial appointments, the consequences can last a lifetime.