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Originalists Do Not Think Segregation Was Unconstitutional, And Wish You'd Stop Bothering Them About It

Wendy Vitter just made the mistake of accidentally telling too much of the truth.

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Brown v. Board of Ed. is a tough case for originalist judges. Their difficulty comes from their desire to adhere to a bare textual understanding of the U.S. Constitution, which is a document written by slavers. Originalists try to skirt most of the horrific defects of the original Constitution by referring to the 13th, 14th, and 15th Amendments as curative of all of the Constitution’s racist ills.

But Brown trips them up because the institution of segregation post-dates the adoption of the 13th, 14th, and 15th Amendments. Clearly, the original authors of those Amendments thought segregation was okay. Congress had many, many opportunities to outlaw segregation, yet did not act. And, of course, Plessy v. Ferguson upheld segregation laws as perfectly constitutional. At every time, up to and including the time that Brown was decided, large pluralities of American legislators and legal scholars believed racial segregation was compatible with the Constitution.

So to believe Brown was right, you kind of have to believe that everybody else: the Framers, the Lincolnites, Congress, and the Supreme Court itself was wrong. Deeply wrong for a very long time. Brown demands that you admit that the wisdom of the text and the people who wrote it MUST YIELD to the moral imperatives of the day.

Now I think that a decision so obviously right that it blows an entire hole in your pet theory for Constitutional interpretation is a good reason to come up with a new pet theory. But originalists can’t do that… so instead, they try to dodge the simple question, “Was Brown v. Board of Ed. rightly decided?” Robert Bork, Antonin Scalia, Neil Gorsuch, there’s a damn CANON of conservative judicial nominees whose own academic philosophies mean they can’t clearly state that segregation is unconstitutional. They’ve got a whole line of tricks and obfuscations that they deploy to throw people off the scent that their guiding principle is morally bankrupt.

Wendy Vitter, the Trump-McConnell nominee to the Eastern District of Louisiana, can’t quite play the game at the level of Scalia or Gorsuch yet. So when Senator Richard Blumenthal called her out on Brown, she stumbled into telling more of the truth than she was supposed to.

Sen. Blumenthal: Do you believe that Brown v. Board of Education was correctly decided?

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Vitter: [Long pause] Senator, I don’t mean to be coy… [long pause] but I think I get into a, uh, 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.

Sen. Blumenthal: Do you believe it was correctly decided?

Vitter: Again, I would respectfully not comment on what could be my boss’s 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.

If you can’t say “yes” to that question, you’re supposed to say “it’s not right for me to comment on ANY case” (aka The Scalia), or you say that it was “correctly applied” (aka The Gorsuch). What you don’t say is that you have “personal, political, or religious views” you’d have to set aside in goddamn BROWN V. BOARD OF EDUCATION. You want to save your “personal, political, or religious” objections for Roe v. Wade… which is always the next question from whoever asked you about Brown.

But, since Vitter brought her personal, political, and religious views into it, I get to mention that we’re talking about Wendy Vitter, wife of disgraced human David Vitter. What are her personal and religious views? Well, back in 2000, in response to the Monica Lewinsky scandal, Wendy Vitter decided to criticize Hillary Clinton, saying:

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“I’m a lot more like Lorena Bobbitt than Hillary. If he does something like that, I’m walking away with one thing, and it’s not alimony.”

Years later, her husband was outed for seeing prostitutes, and yet they are still married and I believe David has all his parts. The woman who might have personal, political, or religious objections to Brown v. Board of Ed. is therefore either a liar or a hypocrite.

Unlike castration, segregation is still very much a live legal issue. Segregation in American public schools is worse now than it was in 1968. Judges who have difficulty calling overt legal segregation unconstitutional are not likely to be concerned by more subtle variations.

Wendy Vitter answered Blumenthal’s question directly enough, once you understand the question and the answer. Here’s what you should have heard.

BLUMENTHAL: Do you think the Constitution prohibits racial discrimination?
VITTER: Pfft, of course not.
BLUMENTHAL: Really?
VITTER: I don’t even think racism is all that bad of a thing. Seriously, you don’t really want to know what I think about this, it’s a slippery slope.

Philosophically, Vitter isn’t all that different than the man who was given the Supreme Court seat Mitch McConnell stole for him. She’s just not as polished, yet.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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