Fresh off of unsuccessful scare-mongering about the dangers of marriage equality, right-wing media are turning the clock back even further and attacking a highly qualified judicial nominee to the important D.C. Circuit Court of Appeals because of her academic writings on established sex equality law.
Started by Ed Whelan of the National Review Online and continued by anti-gay hate group leader Tony Perkins, a whisper campaign against veteran litigator and law professor Cornelia T.L. Pillard, President Obama's pick for the D.C. Circuit, has been spreading through right-wing media.
Whereas Whelan at least attempted to engage the legal arguments of a 2007 law review article in which Pillard explored how decades-old sex equality law is relevant to reproductive rights, other right-wing media are making even wilder and more inaccurate claims to smear the nominee as extreme when she is in fact solidly in the mainstream.
Perkins of the notorious Family Research Council, for example, made numerous errors in his attack on Pillard that, along with Whelan's rhetoric, is circulating on anti-choice websites and right-wing blogs.
Falsely ascribing a quote of conservative former Chief Justice William Rehnquist to Pillard in which he wrote for the Supreme Court that family leave policies not equally provided to both sexes are a "self-fulfilling cycle of discrimination," Perkins inaccurately described it as Pillard's condemnation of "celebrating motherhood." Where Pillard has observed that the anti-choice personhood movement could be exposed as unconstitutional by increasing awareness of the equal protection ramifications for pregnant women, Perkins fabricated the charge that Pillard "criticizes" the ultrasound. Resorting to spreading the ridiculous myth that Pillard would “declare” abstinence-only education “unconstitutional,” Perkins managed to debunk such a silly charge in his very next sentence by quoting her accurate observation that a sex education class that stereotypes and disadvantages women could theoretically be “vulnerable to an equal protection challenge” under established precedent.
Finally, Perkins selectively quoted Pillard to characterize as "militant feminism" her argument that for women to have equal rights in the workplace, they need to be valued for more than their ability to bear children. From the actual full quote in Pillard's 2007 article:
A society in which women lack control to plan when they have children is one in which women must remain second-class citizens. We already know, and the Court recognized in Hibbs, that many employers assume that to be a mother is to be a primary caregiver with correspondingly less job commitment than a man, who is presumed to be an unencumbered “ideal worker.” If impaired access to contraceptives hinders women's ability to exercise choice about when and whether to have children, it also reinforces broader patterns of discrimination against women as a class of presumptive breeders rather than reliable breadwinners and citizens.
Such transparent sexist hack work, however, tends to obscure the more disturbing aspects of the right-wing media smears against Pillard. These attacks are fighting battles on reproductive rights and sex equality that were lost by conservatives decades ago.
Subscribers to extreme right-wing legal thought have been complaining about the Supreme Court's confirmation that the U.S. Constitution protects reproductive rights since the decisions protecting a woman's right to contraception in 1965 and a woman's right to choose an abortion in 1973. For example, conservative Justice Antonin Scalia still has no problems publicly railing against these decisions, calling well-established reproductive rights doctrine and precedent "simply a lie."
In recognition of this half-century of conservative intransigence, the legal academy - and four justices of the Supreme Court - have been arguing for decades that some reproductive rights are also constitutionally cognizable under the Equal Protection Clause of the 14th Amendment, not just protected as fundamental rights of privacy and due process. That is, certain proscriptions on the control women have over their bodies and life choices are unconstitutional not just because it invades their autonomy, but also because such actions discriminate against them on the basis of sex.
Indeed, this combination of doctrinal privacy, due process, and equal protection has become so commonplace in Supreme Court jurisprudence that it is at the core of Justice Anthony Kennedy's last three decisions finding discrimination against the LGBT community and marriage equality to be an unconstitutional affront to dignity. Unsurprisingly, this newer application of equal protection enraged many of the exact same right-wing media outlets attacking Pillard now.
But at least these angry reactions to losing arguments against marriage equality and the development of constitutional equal protection law are current. Complaining about sex equality law and Rehnquist's condemnation of unconstitutional sex stereotypes is arguing against Pillard's nomination via time warp.
Ultimately, it's a bit lonely to be against choice, contraception, family leave, and comprehensive sex education - not to mention equal protection law - in 2013 America. Some in the right-wing media, however, seem to not care that they're running backwards with fewer people or judges willing to follow their failing arguments.
Smearing nominees like Pillard based on academic musings won't help.