The Senate Should Confirm Nina Pillard Already

I wholeheartedly support Cornelia “Nina” Pillard’s nomination for the D.C. Circuit Court of Appeals, because she is awesome. Professor Pillard taught two of my classes at Georgetown, so I can say from personal experience that she is a smart, diligent, judicious thinker. She is also a triathlete with practically-bionic strength. (That is less relevant to her judicial nomination, but still cool. Her exploits in the law school’s gym were legendary amongst my classmates.) The Senate should confirm her already.

I am not the only one who thinks that Pillard would be an asset to the federal bench. Here is Professor Viet Dinh, former deputy Attorney General under George W. Bush, and probably Georgetown’s most famously conservative faculty member, on Pillard’s qualifications:

“She is a fair-minded thinker with enormous respect for the law and for the limited, and essential, role of the federal appellate judge– qualities that make her well prepared to taken on the work of a D.C. Circuit judge. I am confident that she would approach the judicial task of applying law to facts in a fair and meticulous manner.”

And here is a statement from a group of 40 prominent attorneys who practice before the Supreme Court, including several who served in senior roles in the Reagan and Bush justice departments:

“We believe that Professor Pillard would bring to the D.C. Circuit unquestioned professional integrity and intellect, a breadth of experience, and dedication to fairness and the rule of law. We urge her confirmation.”

And yet, if you listen to the Republican members of the judiciary committee and the denizens of the National Review echo chamber, Pillard is some sort of crazed radical who probably shouldn’t be trusted with young minds, let alone federal cases. Never mind that she has assisted dozens of litigants, from all points on the political spectrum, pro bono as part of Georgetown’s Supreme Court Institute. Never mind that she collaborated with Dinh and the Bush Administration to litigate (and win) Nevada Dept. of Human Resources v. Hibbs before the Supreme Court. No, apparently Pillard is “out of the mainstream,” and would be “the most left-wing judge in the history of the republic.”

The reasoning behind these statements is a bit hazy, but as best as I can tell, the main arguments are: first, that Pillard is a “radical feminist” and “pro-abortion extremist” because she has advocated for policies that would increase women’s access to contraception, and against those that would burden women’s abortion rights; second, that it is “absurd” and “merely feminist propaganda” for her to argue that sex ed programs that reinforce harmful stereotypes about gender roles could pose an equal protection problem; and third, that because one time she was wrong about how the Supreme Court would decide a case involving the free exercise of religion, she is a “radical.”

Needless to say, I find these arguments ridiculous. As Dahlia Lithwick notes in her excellent Slate piece on the subject, it is not in any way radical to argue, as Pillard does, that women should be able to control the timing and frequency of their pregnancies. Her idea that women should be free from “historically routine conscription into maternity” is an entirely mainstream view. (Does Senator Cruz actually believe that women should be conscripted into maternity? Surely he doesn’t actually believe that, right?)

Likewise, it’s not clear to me why Pillard’s belief that sex-ed programs that promote invidious stereotypes about women’s value might raise equal protection concerns is some sort of first step on the road to totalitarianism. Would Senator Cruz see no basis for legal concern with, say, a state-sponsored program that taught that African American students should be deferential to white people? Or that Hispanic students should accept the limitations of their traditional role as migrant laborers? If not, I’m not at all clear why it’s crazy for Pillard to suggest that the “official promulgation of retrogressive, anti-egalitarian sexual ideologies-of male pleasure and female shame, male recreation and female responsibility, male agency and female passivity, and male personhood and female parenthood” might pose a wee bit of a problem with respect to women’s equality before the law.

Finally, it’s pretty silly to argue that Pillard’s swing and a miss on the Hosanna-Tabor decision is evidence that she is a “radical” who would pose a danger to religious freedom if confirmed. (That case concerned whether a teacher in a religious school fell within the “ministerial exception” to federal employment discrimination laws if her duties were primarily secular in nature. The federal government, the Sixth Circuit, and Pillard thought “no”, but the entire Supreme Court disagreed.) Supreme Court cases are rarely foregone conclusions, and in this case there was a significant circuit split over the issue. Moreover, if Pillard’s prediction made her a “radical,” then Eric Clay, Ralph Guy, and Helene White, the Sixth Circuit judges whose actual ruling the Supreme Court overturned, (and who are Reagan, Clinton, and George W. Bush appointees, respectively), must truly be Jacobins of the federal bench. Funny how there haven’t been any such accusations when it comes to them…

(But while we’re on the subject of radicalism, let’s not forget that Judge Jay Bybee’s nomination for the 9th Circuit was confirmed 74-19, despite his history of authoring a memo that justified and supported the Bush Administration’s use of “enhanced interrogation techniques.” I guess Bybee was lucky that he had just kept to safe, uncontroversial topics like legitimizing torture, instead of such extremist questions as “should women have access to contraception?”)

In all seriousness, though, using trumped-up outrage to derail the nomination of a candidate as qualified as Pillard is bad for the judiciary, and bad for the country. We ask our judicial branch to be a check on elected officials’ power and a protector of minorities’ constitutional rights, which means that federal judges will, periodically, have to wade into areas of controversy. Those courts will not please all of the people, all of the time, and they won’t be made up entirely of people who have never held a notable opinion in their previous careers. The best we can do is to select intelligent and well-qualified judges who will carefully weigh the law and the facts, and decide cases based on that meaningful deliberation.

Someone like, say, Nina Pillard.

Amanda Taub

Leave a Reply

Your email address will not be published. Required fields are marked *