Nina Pillard

Flashback: When Republicans Thought It Was Okay For Judicial Nominees to Have Opinions

Republicans on the Senate Judiciary Committee spent yesterday’s confirmation hearing on D.C. Circuit Court of Appeals nominee Nina Pillard harping on two points: first, that they think the D.C. Circuit doesn’t need its three vacancies filled, and second, that they think Pillard’s arguments as an academic mean she would disregard the law as a judge.

As it happens, when George W. Bush was the one nominating federal judges, the very same senators held the exact opposite view on both of these issues.

As People For the American Way has extensively shown, the argument that the D.C. Circuit doesn’t need judges holds no water – in fact, Bush nominees Thomas Griffith and John Roberts (now Chief Justice) were confirmed to the D.C. Circuit when each active judge’s caseload was significantly lower than it is today. 

And Republican attacks on Pillard’s academic writings also directly contradict their previous statements on Bush nominees with academic records. As Pillard noted in her hearing, "Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit."

Just a few years ago, Republican senators agreed. On the nomination of Tenth Circuit judge Michael McConnell, who took a number of far-right stands as an academic, including disagreeing with a Supreme Court decision declaring that a university ban on interracial dating constituted racial discrimination, Utah Sen. Orrin Hatch said, “The diversity of backgrounds and points of view are often the stitches holding together the fabric of our freedoms.”

“Surely, we can’t vote for or against a nominee on whether they agree with us on any number of a host of moral and religious issues, ” Alabama Sen. Jeff Sessions said of Eleventh Circuit nominee William Pryor, a far-right culture warrior who was outspoken in opposition to gay rights, women’s rights and the separation of church and state.

Then-Sen. Jim Demint defended D.C. Circuit Judge Janice Rogers Brown, one of the most outspoken conservative ideologues on the federal bench today, by saying, “A person with strong beliefs and personal convictions should not be barred from being a judge. In fact, I would rather have an honest liberal serve as a judge than one who has been neutered by fear of public opinion.”

And before the Senate confirmed Arkansas District Court Judge J. Leon Holmes, who used Todd Akin’s line about pregnancy from rape before Todd Akin did, Hatch told concerned colleagues,  “This man is a very religious man who has made it more than clear that he will abide by the law even when he differs with it.”

These Bush nominees held positions that were clearly far out of the mainstream, yet Senate Republicans demanded and got yes-or-no confirmation votes on them, helping Bush to shift the federal judiciary far to the right.

What some Judiciary Committee Republicans objected to at yesterday’s hearings is what they apparently see as Pillard’s excessive support for women’s equality, both as an attorney and an academic. Pillard won the Supreme Court case opening the Virginia Military Institute to women and worked with Bush administration officials to successfully defend the Family and Medical Leave Act.  She has strongly defended reproductive rights and criticized abstinence-only education that sends different messages to boys and girls. It’s this record that  her Republican opponents have distorted beyond recognition.

By any measure, Pillard is well within the mainstream, and has made it very clear that she understands that the role of a judge is to apply existing law regardless of one’s personal views. But while Senate Republicans made plenty of excuses for Bush nominees who were far outside the mainstream, they are accusing Pillard of being just too much of a women's rights supporter to fairly apply the law.

Ted Cruz Distorts and Ignores Nina Pillard's Actual Record

The far right is distorting what DC Circuit nominee Nina Pillard has written and said.
PFAW

Setting The Record Straight: DC Circuit Court Nominee Nina Pillard Is A Fair and Unbiased Candidate

Today, the Senate Judiciary Committee will hold a hearing on the nomination of Cornelia “Nina” T.L. Pillard to the influential Court of Appeals for the D.C. Circuit. Pillard is one of President Obama's three nominees to fill vacancies on the court, which is currently operating with nearly one-third of its seats empty.

Pillard is a fair-minded, nationally recognized law professor and experienced appellate lawyer with an extraordinary record of service. She has won historic Supreme Court victories:  she opened one of the last male-only public colleges to women, and protected the Family and Medical Leave Act. She has served two tours as a high-level government lawyer and is currently a distinguished and beloved professor at Georgetown University Law Center. Her expertise in appellate litigation led to her appointment as a co-director of Georgetown’s Supreme Court Institute, which assists lawyers from around the country in preparing for Supreme Court arguments, without regard to which side they represent. Her record demonstrates her superb character, judgment, and fundamental commitment to upholding the principles of our Constitution and laws.

Right-wing bloggers are already making nasty and untrue attacks on Professor Pillard, but here are the facts:

The National Review Online cited unnamed sources in a blog calling Professor Pillard a “complete ideologue.” In reality, Professor Pillard is a fair-minded, highly accomplished litigator with broad experience and an outstanding reputation for public service. She has litigated major constitutional cases brought or defended by Republican Administrations, and Supreme Court justices appointed by Republican presidents have often written the majority opinions agreeing with Professor Pillard’s legal arguments. And prominent officials in Republican-appointed officials are supporting her nomination.

FACT:  Because of Pillard’s unbiased approach to the law, which has earned her the respect of her colleagues, she was asked to chair an American Bar Association Reading Committee that evaluated Judge Samuel Alito’s qualifications to serve on the Supreme Court. Her committee’s evaluation led to the ABA rating Alito “well qualified."

  • The Reading Committee reviewed all of the legal writings of then-Judge Samuel Alito for purposes of evaluating his nomination to the Supreme Court. Armed with the review by Professor Pillard’s committee, the Standing Committee unanimously gave Judge Alito its highest rating of “Well Qualified.”   

FACT:  Pillard serves on the Executive Committee of the Board of Directors of the American Arbitration Association, the world’s largest alternative dispute resolution provider. 

  • At the American Arbitration Association, Pillard has worked with corporate general counsels and business leaders to advance the Association’s private arbitration services and mission.  Arbitration is a process favored by many businesses for resolving disputes without the cost and delay of litigation.

FACT:  Pillard has a long track record of fair and unbiased work, including litigating major constitutional cases brought or defended by Republican Administrations. And Supreme Court justices appointed by Republican presidents have often written the majority opinions agreeing with her legal arguments.   

  • Over the past 15 years, Professor Pillard has distinguished herself as a professor at Georgetown University Law Center, where she both teaches and serves as a Co-Director of the Supreme Court Institute, preparing lawyers for argument on a pro bono, first-come basis to all lawyers who seek assistance. Over the past term, the Supreme Court Institute prepared lawyers on one or both sides of every case heard by the Supreme Court. 
  • Professor Pillard argued the Supreme Court case Nevada Department of Human Resources v. Hibbs alongside DOJ officials in the George W. Bush administration. Together, their defense of the Family and Medical Leave Act successfully vindicated a state employee’s right to take unpaid leave to care for his ill wife. Chief Justice Rehnquist wrote the majority opinion, siding with Professor Pillard’s argument.
  • In United States v. Virginia, a case filed by the George H.W. Bush administration, Professor Pillard wrote the briefs that persuaded the Supreme Court to open the Virginia Military Institute to women, ending one of the last state college male-only admissions policies in the country.
  • In Ornelas v. United States, Professor Pillard argued that reasonable suspicion and probable cause – the defining standards for police searches and seizures – require independent review in appellate courts to clarify and control the legal rules, unify precedent, and afford law enforcement clear guidance as to when searches are appropriate.  In an opinion written by Chief Justice Rehnquist, the Supreme Court agreed with Professor Pillard’s legal arguments. 
  • In Behrens v. Pelletier, Professor Pillard won a critical victory ensuring that local, state, and federal government officials can defend themselves adequately when sued. In an opinion by Justice Scalia, the Supreme Court agreed with the position articulated by Professor Pillard.   

FACT: President George W. Bush’s Assistant Attorney General Viet Dinh signed a letter of support for Professor Pillard citing her unbiased approach to the law.

  • Professor Pillard “is exceptionally bright, a patient and unbiased listener, and a lawyer of great judgment and unquestioned integrity. We certainly do not agree on the merits of every issue, but Nina has always been fair, reasonable, and sensible in her judgments. She approaches faculty hiring, teaching and curriculum, and matters of faculty governance on their merits, without any ideological agenda--at times even against the tide of academic popularity to defend and respect different views and different types of people.

The Family Research Council has attacked Professor Pillard, claiming she has radical liberal ideas on abortion, motherhood and abstinence only education.

The FRC wrongly attributed a quote to Professor Pillard which was actually a quote belonging to former Chief Justice Rehnquist.

  •  FRC’s Email stated: “A mother of two, Nina wrote a 2011 paper, "Against the New Maternalism," which argues that by celebrating motherhood, society is creating a "self-fulfilling cycle of discrimination."
  •  In Professor Pillard’s Article, she is quoting the majority opinion in the Hibbs case, written by then-Chief Justice William Rehnquist: “Providing men with family leave, the Hibbs court reasoned, would help to change underlying gendered patterns of family care and thereby help to counteract “a self-fulfilling cycle of discrimination” – a cycle that “fostered employers’ stereotypical views about women’s [lack of] commitment to work and their [lesser] value as employees,” as well as “parallel stereotypes” of men’s overriding workplace commitment that routinely obstruct men’s equal access to family benefits that could encourage them to spend more time parenting. The radical implication of Hibbs is that we cannot end sex discrimination outside the home without changing our beliefs about women’s and men’s differential attachments to family care within it, and we cannot change those beliefs without actually shifting the allocation of care work within the family.” (Pillard, Against the New Maternalism, p. 231)
  • Additional reference to the original Rehnquist Quote: “But in a broadly worded opinion, Rehnquist said Tuesday that Congress and the courts could use stronger standards to fight sex discrimination. He detailed the long history of discriminatory leave policies and the rationale for the family leave law, which guarantees employees up to 12 weeks of unpaid leave to care for family members… Before the law, he wrote, leave policies were grounded in "stereotypes about women's domestic roles" and "parallel stereotypes presuming a lack of domestic responsibilities for men." Those "mutually reinforcing stereotypes," Rehnquist noted, created a "self- fulfilling cycle of discrimination" that forced women to maintain the role of primary family caregiver.” (Court bolsters family leave, Chicago Tribune, 05/03)

The Family Research Council wrongly accuses Professor Pillard of broadly claiming that abstinence only education is unconstitutional, saying, “Pillard is so fiercely opposed to abstinence education that she has said publicly she would declare it unconstitutional.”

  • Nina Pillard: “I do not here take a position on the abstinence message itself, beyond arguing that it must not be embedded with sexual stereotypes or discriminatorily applied to women and not men.” (Pillard, Our Other Reproductive Choices, p. 962)
  • Professor Pillard does not oppose abstinence-only education. Rather, she has written that sex education, whether it advocates abstinence or not, should treat boys and girls equally and avoid sex-role stereotypes, in the interest of promoting equal responsibility on the part of both boys and girls.

The FRC claimed that Professor Pillard has ‘extreme pro-abortion’ views when in fact Professor Pillard’s academic writing on abortion seeks ways to bridge the gap between abortion rights advocates and opponents by finding common ground for ways to reduce reliance on abortion.

  • “All of these visions of sex equality and reproductive rights are ones that can be shared by people whether they view themselves as pro-life or pro-choice. If society were willing to recognize the demands of equality in these three areas, there might well be less need for abortion. Filling out the reproductive rights agenda with measures that make abortion less necessary is one way to seek progress, notwithstanding legal and cultural conflict about abortion itself.”  (Pillard, Our Other Reproductive Choices, p. 990)
  • Professor Pillard’s academic writings show her openness to viewpoints raised by abortion rights opponents: Professor Pillard consulted respected anti-abortion advocate Helen Alvaré in writing her article ‘Other Reproductive Choices’ to ensure her work considered all sides of the public debate on women’s reproductive health. In fact, Professor Alvaré is listed in the article’s acknowledgements.
  • “Feminists for Life (FFL), a nonprofit organization declaring itself in favor of equality for women and against abortion, makes some claims that resonate with those of some pro-choice feminists, and which should be common ground in the reproductive rights battles.” (Pillard, Our Other Reproductive Choices, p. 981)
     
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