Although all of President Obama's qualified nominees for the U.S. Court of Appeals for the D.C. Circuit are currently at risk of being refused an up-or-down vote by unprecedented Republican obstructionism, right-wing media have targeted Georgetown law professor Cornelia “Nina” Pillard in particular with misguided smears.
The D.C. Circuit, The Second-Most Important Court In The Country, Is In Immediate Need Of Highly-Qualified Judges
People For The American Way: The D.C. Circuit is “Critically Important,” “Unique,” And “Dominated By Right-Wing Ideologues.” The D.C. Circuit is considered the second-most important court in the country because its cases arise out of complex administrative law controlling the powers of the federal government, and its decisions have national implications. Due to the court's imbalance toward Republican nominees, progressive legislation at the core of federal agencies like the Environmental Protection Agency and the National Labor Relations Board has become increasingly threatened:
The DC Circuit is dominated by right-wing ideologues who are deeply hostile to the use of a robust federal government to tackle national problems and make our lives better. There are now three vacancies on the 11-member court, and President Obama has nominated three highly qualified people -- Patricia Millett, Cornelia “Nina” Pillard, and Robert Wilkins -- to fill them. But Senate Republicans -- who blocked President Obama's efforts to get even one judge onto the DC Circuit during his first term -- are gearing up for more obstruction.
The DC Circuit by law is the exclusive court to consider appeals of an array of agency regulations and decisions affecting the entire country. Moreover, even when parties appealing agency decisions, congressional statutes, or presidential actions have a choice of venues, they often choose to have their cases heard by the DC Circuit due to its expertise in complex administrative matters.
While the Supreme Court is better known, it only hears a miniscule portion of appeals that are filed with it. So when the DC Circuit makes a ruling, it is almost guaranteed to be the last word on the matter.
Every facet of our lives is affected by some aspect of federal law, whether it's clean air rules, gun safety, telecom regulations, investor protection rules, securities fraud laws, labor law, banking regulations, food safety requirements, credit card regulations, election law ... All these can be appealed to the courts, and that court is often the DC Circuit. So for those seeking to block a progressive federal government agenda, the DC Circuit is an important vehicle. [PFAW, 2/20/13]
Who Is Nina Pillard, And What Are Her Qualifications?
Constitutional Accountability Center: Pillard Is “Exceptionally Well-Qualified To Serve As A Federal Appellate Judge.” In an open letter to the Senate Judiciary Committee, the non-partisan Constitutional Accountability Center praised Pillard's professional background and her bipartisan endorsements as evidence of her fitness for a seat on the D.C. Circuit:
Professor Pillard, a magna cum laude graduate of both Harvard Law School and Yale College, is exceptionally well-qualified to serve as a federal appellate judge. For more than a decade, she has been a Professor at the Georgetown University Law Center, where, in addition to teaching the next generation of lawyers, she has also helped direct the Supreme Court Institute, working to prepare counsel for oral argument before our Nation's highest court.
Prior to her career in academia, Professor Pillard practiced law in the public interest sector and also served in the government, including as an Assistant to the Solicitor General and as the Deputy Assistant Attorney General. Professor Pillard's distinguished career and the breadth of her professional experience make her extremely well qualified to serve on the D.C. Circuit.
This conclusion is underscored by the diversity of voices supporting Professor Pillard's nomination. Those who have written to this Committee in support of Professor Pillard include the deans of prominent law schools, former members of the United States Armed Forces (including high-ranking officers), noted legal advocates, and William Sessions, himself a former federal judge and the Director of the FBI, nominated to that position by President Ronald Reagan. [Constitutional Accountability Center, 9/9/13]
Former Superintendent Of The Virginia Military Institute: Pillard Is “Well-Qualified” With “Qualities That Distinguish The Best Judges.” Josiah Bunting, the former superintendent of the Virginia Military Institute, initially resisted the gender integration that Pillard helped to bring about in the famous Supreme Court case of United States v. Virginia. As part of admitting that his opposition to ending the males-only policy was wrong, Bunting now supports Pillard's confirmation to the D.C. Circuit:
When the Virginia Military Institute first opened its doors to female cadets in 1997, we welcomed a class that included 30 women. As superintendent of VMI during that first coed class, I felt both the weight of responsibility that came with the integration of women -- and the possibility.
VMI did not willingly open its doors to women in 1997, and many cadets and officers -- myself included -- initially opposed the decision. We believed that VMI's all-maleness was the essential element in our singular way of preparing cadets for their careers.
Over the 15 years since, the women who have excelled at VMI in increasing numbers have proved me wrong. I soon came to believe that the response of our institution and our integration of women was VMI's finest hour.
Many people deserve credit for today's successful coeducation at VMI, not the least of whom are the brave women who first sought to walk through its gates. But it was a dedicated attorney named Nina Pillard who wrote the briefs that convinced the U.S. Supreme Court to strike down the school's male-only admissions policy in United States v. Virginia.
During the course of the United States v. Virginia case, I was impressed by Pillard's fairness and rigor. She respected others' strongly held views about male-only education at VMI, and I always felt that while we had opposing positions at the time, she comported herself with integrity and understanding -- qualities that distinguish the best judges at all levels. [Politico, 9/17/13]
Yet Pillard's Record Has Been Unfairly Distorted And She Has Been Subjected To Numerous Right-Wing Smears
Right Wing Watch: Pillard Is Called A “Radical Feminist Law Professor” Despite Her Uncontroversial Beliefs. Right-wing media and conservative groups have painted Pillard as outside the mainstream even though her civil rights advocacy is based on decades-old sex equality precedent. Right Wing Watch noted that conservatives were so desperate to paint Pillard as a “militant feminist” that they erroneously attributed a quote about stereotyping to her, despite the fact it was actually a quote from arch-conservative former Chief Justice William Rehnquist:
Georgetown law professor Cornelia “Nina” Pillard, one of President Obama's three nominees to fill vacancies on the influential D.C. Circuit Court of Appeals, is one of the country's most renowned women's rights attorneys. She crafted the argument that convinced a nearly unanimous Supreme Court to open the Virginia Military Institute to women. She worked alongside Bush administration attorneys to successfully defend the Family and Medical Leave Act in the courts. She has opposed government policies that treat men and women differently based on outmoded stereotypes that harm both sexes.
So, of course, conservative activists and their Republican allies in Congress are calling her a “radical feminist” and threatening to filibuster her nomination.
In an interview with the Family Research Council's Tony Perkins Friday, National Review columnist Ed Whelan called Pillard a “radical feminist law professor” and insisted that she would be “the most left-wing judge in the history of the republic.”
Phyllis Schlafly -- who, of course, also opposed the opening of VMI to women and the Family and Medical Leave Act -- calls Pillard a “scary feminist.”
The Family Research Council has also gone after Pillard, skewing the meaning of her words and even citing her use of a phrase that was actually written by the late Chief Justice William Rehnquist as evidence of her “militant feminism.” [Right Wing Watch, 9/16/13]
Slate: “Vicious Attacks” On Pillard Are A Rejection Of “The Stuff Basic Gender Fairness Is Built On.” Legal expert Dahlia Lithwick pointed out that Pillard's civil rights work “would certainly be a disqualifying feature of her advocacy work. If it were 1854” :
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[.]
She isn't being condemned for what most Americans view as radical feminist activism. She's being shellacked for academic and litigation work devoted to pushing for basic women's equality. These attacks are reminiscent of nothing so much as the vitriol and contempt directed at women like Sandra Fluke, who was an advocate of access to birth control -- not a radical proposition -- and Lilly Ledbetter, who has pushed for equal pay. These are not wackadoo “feminist” ideologies. These are not castrating, mommy-hating, end-of-men plans for world dominion. This is the stuff basic gender fairness is built on. [Slate, 7/25/13]
American Constitution Society: Republicans “Smearing [Pillard's] Stellar Legal Record.” As explained by ACS, Senate Republicans have mirrored right-wing media attacks against Pillard, distorting her record on important issues and threatening to reduce the number of seats on the D.C. Circuit overall:
Pillard has not only taught law, she's practiced law representing the federal government and individuals seeking to enforce Congress's civil rights laws. But [Sens. Mike Lee (R-UT) and Ted Cruz (R-TX)] during a Senate committee hearing labored to create a far different picture. Specifically they focused on a short symposium article she wrote more than a decade ago that sought common ground on the divisive issue of reproductive choice, and an amicus brief she wrote in support of lower court decisions that had held Operation Rescue accountable for physically blocking women's access to family planning facilities.
But Lee and Cruz seemed either to misunderstand or misrepresent Pillard's own words. For example, Cruz claimed that Pillard had once written that abstinence-only education was constitutionally suspect. She did not and tried to explain it to the senator. Pillard pointed out that her article merely argued that such programs should not be bound by stereotypes. Instead she explained that abstinence-only education should be taught without promulgating stereotypes. Moreover that article was intended for policymakers offering ways to bridge a gap between anti-abortion activists and women's rights advocates by identifying initiatives both sides could agree upon that would reduce the incidence of abortion.
Cruz and Lee continued their misrepresentation of Pillard's legal work, claiming that in an amicus or friend-of-the-court brief that she equated anti-abortion activists to violent white supremacists, like the KKK. Again, the senators either did not read the brief or they shamelessly took parts of it out of context to tar Pillard. In reality Pillard argued that a civil rights law was aimed at private groups that interfered with or 'hindered' the police's ability to protect people's rights, no matter who the private groups were. In no way could the brief be read to say that a moral equivalency exists between anti-abortion activists and violent groups like the KKK.
Pillard in fact has a stellar record reflecting moderate views, and has received the support of Republicans, former law enforcement and military officials, conservatives, and many leading members of the Supreme Court bar from both parties. [ACS, 7/25/13]
Right-Wing Media's “Court-Packing” Argument Against Pillard Is Ridiculous Too
Presidential Historian Jeff Shesol: The Historical Reference To Court-Packing Has “No Valid Application To The Matter At Hand.” Writing in Reuters, Jeff Shesol, who recently authored a book examining FDR's unsuccessful attempt to add seats to the Supreme Court, explained that contrary to the simultaneous claims of right-wing media and the GOP, "[t]here is an obvious difference between filling an empty seat and creating a seat for the purpose of filling it":
"[C]ourt-packing" is not a new term, and its menacing overtone is not a recent discovery. “There is a good deal of prejudice against 'packing the court,'” observed Homer Cummings, the U.S. attorney general, in 1936, on the eve of President Franklin D. Roosevelt's failed attempt to do just that -- to tip the Supreme Court's balance by increasing the number of seats and filling them with New Dealers. Cummings, who sold the idea to FDR, hoped Americans would not be “frightened by a phrase.”
But they were. And today's GOP is betting they still are. Hence the resort to a term that has no valid application to the matter at hand: President Barack Obama's determination to fill the three vacant seats on the U.S. Court of Appeals for the D.C. Circuit.
The Wall Street Journal editorial board is also invoking the p-word -- insisting they are shocked, shocked that the president would think of exercising his power under Article II, Section 2 of the Constitution to appoint judges.
Both House and Senate Republicans have now introduced bills to stop Obama by simply eliminating the seats he wishes to fill. They are seeking to reduce the size of the D.C. Circuit from 11 judges to eight. This court is a target for conservatives for two reasons: First, because of its primary role in regulatory and national security cases, and second, because another Obama appointment (never mind three) would put the court's Republican appointees in the minority.
Call the Republican approach “court-shrinking” -- court-packing in reverse. Court-shrinking, too, has a shameful history. And court-shrinking, more than court-packing, is a phrase that really is frightening. [Reuters, 11/5/13]
Washington Director Of The NAACP LDF: When President George W. Bush Tilted The Courts With His Nominees, No One Accused Him Of “Trying To 'Pack The Courts.'” In commentary for Roll Call, judicial nominations expert Leslie M. Proll recounted that former President Bush was an expert at pushing multiple picks:
[N]ominating three judges to fill existing vacancies on one appellate court is not “court packing.” As many legal historians have noted, “court packing” was what Franklin Delano Roosevelt committed when he attempted to add additional seats to the Supreme Court to gain more support for his agenda. Rather than add additional seats, Obama's nominees would fill existing vacancies, including a seat left vacant by Chief Justice John G. Roberts Jr.'s 2005 ascension from the D.C. Circuit to the Supreme Court.
[Sen. Charles E. Grassley, R-IA] doubled down on his ahistorical characterization of the president's nomination of Pillard, Wilkins and Millett when he said in his statement Monday, “It's hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda.”
In fact, it's not hard to imagine. All you have to do is cast your mind back to May 9, 2001, when President George W. Bush nominated three judges on the same day to fill vacancies on the 4th Circuit Court of Appeals: Roger Gregory, Dennis Shedd and Terrence Boyle. On that same day, he nominated John G. Roberts Jr. and Miguel Estrada to the D.C. Circuit; Priscilla Owen and Edith Brown Clement to the 5th Circuit; and Jeffrey Sutton and Deborah Cook to the 6th Circuit. He also nominated Michael McConnell to the 10th Circuit and Barrington Parker to the 2nd Circuit. Eleven judges were nominated in all.
At that time, no one accused Bush of trying to “pack the courts” with his slates for the circuits. Indeed, in his remarks, Bush noted: “With today's 11 nominees, we continue a constitutional process that involves all three branches of government.” [Roll Call, 6/7/13]