Back From Break, Back To Obstruction: Right-Wing Media Again Agitating Against D.C. Circuit Nominees

As Congress returns from summer recess, right-wing media are once again helping obstruct President Barack Obama's nominees to the critical U.S. Court of Appeals for the D.C. Circuit.

Picking up where it left off, National Review Online is continuing its attacks on Georgetown Law Professor Cornelia “Nina” Pillard because of her purportedly wild-eyed academic writings on sex equality law, a mainstream part of American constitutional jurisprudence for decades.

Having seemingly failed to convince anyone beyond GOP Senators like Ted Cruz - who repeated NRO's talking points during Pillard's confirmation hearing - the NRO has now resorted to accusing Pillard of "false and deceptive" misrepresentations of one of these law review articles.

Specifically, NRO claims to know the true meaning of the article's words better than the author who wrote them, confidently concluding Pillard's law review piece was not academic, but rather an "ideologue['s]" manifesto of "extremism." From NRO:

In short, contrary to her testimony, Pillard wasn't playing the disinterested academic and merely identifying “the argument that one would make to make [her equal-protection challenge] amenable” to judicial resolution. Rather, she was affirmatively advocating the argument.[emphasis original]

In short, NRO is quibbling over whose paraphrase and characterization of a 53-page academic article was more correct during the hearing.

Considered to be the second most important court in the nation due to its complex caseload of challenges to pressing federal law and regulations, the D.C. Circuit has once again become a political flashpoint as Republicans and big-business increasingly seek to unravel progressive legislation and precedent through lawsuits. Right-wing media have been a crucial ally in this effort, in some instances providing content that the GOP repeats verbatim, like what occurred during the Pillard hearing.

Currently, there are three highly-qualified nominees to the D.C. Circuit that the GOP has made clear it will obstruct and perhaps filibuster, as they did Caitlin Halligan. Before the recess, right-wing media served as the echo chamber for the two most repeated attacks: the D.C. Circuit does not need any more judges and one of the president's nominees is unqualified because she is a “feminist.”

The first challenge has been repeatedly debunked. Whatever baseline or measurement of caseload numbers one uses, the salient point to remember about why the D.C. Circuit does indeed need its full complement of judges has been explained not only by its former chief judge, but also by the current Chief Justice of the Supreme Court.

As noted by former D.C. Circuit Chief Judge Patricia M. Wald:

The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans' lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record -- all of which culminates in lengthy, technically intricate legal opinions.

The second challenge is the one that it appears NRO is still obsessed with, as evidenced by its latest round of Pillard smears arguing that her writings on sex equality law disqualify her from being a federal judge. That NRO considers this to be a relevant counterpoint in 2013 is unfortunately not that surprising in light of its discussion of race, which also constantly belittles civil rights accomplishments.

Still, the fact that NRO's arguments against Pillard as a suitable candidate for the D.C. Circuit depend on accepting the ahistorical premise that sex equality law is somehow shocking in today's society and courts is notable. As Slate's legal expert Dahlia Lithwick marveled, the argument boils down to: "Nina Pillard is Obama's choice for D.C. Circuit Court judge. Nina Pillard is a liberal woman. Ergo Nina Pillard is a radical feminist." From Slate:

Cornelia “Nina” Pillard is President Obama's pick for one of three vacant seats on the federal appeals court for the District of Columbia Circuit. She is a well-respected professor at Georgetown Law School; co-director of its Supreme Court Institute; a former lawyer at the ACLU, the NAACP Legal Defense Fund, and the Justice Department; and a successful Supreme Court litigator.

She is also a “feminist.”

A “feminist” insofar as she has spent part of her career advocating for women's equality (including a successful brief challenging the men-only admissions policy at the Virginia Military Institute, and a successful challenge to gender-biased family leave policies). Pillard's “radical feminism” appears largely to take the form of seeking equality for women, which would certainly be a disqualifying feature of her advocacy work. If it were 1854.


Instead of cherry picking Pillard's 2012 law review article about motherhood for gotchas, one could wish the Republicans on the Judiciary Committee had just read it for its fundamental argument, which concludes that "[i]t has only become clearer in recent decades how the roles of women and men at home, and in our collective cultural assumptions about those roles, will have to undergo a major change before the freedom and equality that so many kinds of advocates have long envisioned can become real."

A good place to start to change cultural assumptions about the “radical” nature of equality, parity, and respect for women might well be among Republican men on the Senate Judiciary Committee.

Next week, the last of the three D.C. Circuit nominees will receive his Judiciary Committee hearing before all three are voted on before the full Senate. Like Pillard and veteran Supreme Court litigator Patricia Millett, U.S. District Judge Robert Wilkins, who will appear before the committee on September 11, is considered by legal observers to be "non-controversial."

Yet even Millett, who was explicitly told by GOP Senators that she was qualified for the position but was hostage to their blockade of the D.C. Circuit, was unanimously voted against by every Republican. It will be interesting to see if this self-evident statement is offered for Wilkins, who in a long and distinguished legal career was also part of the three-judge panel that blocked Texas' strict voter ID law because of its clear and illegal racial discrimination.

Sadly, in light of right-wing media's treatment of Pillard for her similar adherence to mainstream civil rights law, this may be too much to hope for.