People For the American Way Director of Communications Drew Courtney appeared on Disrupt with Karen Finney this weekend to discuss Senate Republicans’ reckless obstruction of President Obama’s nominees to the important Court of Appeals for the District of Columbia Circuit.
Right-wing groups determined to paint D.C. Circuit Court of Appeals nominee Nina Pillard as a “scary,” “radical” and “militant” feminist have taken to using an unexpected weapon: a landmark women’s rights decision written by the late conservative Supreme Court Chief Justice William Rehnquist.
Ten years ago, the state of Nevada had challenged the Family and Medical Leave Act after a male state employee had tried to take his FMLA-sanctioned leave to care for his ailing wife. Pillard joined with the Bush administration to bring the case, Nevada Department of Human Resources v. Hibbs, to the Supreme Court and successfully argued that the FMLA should be upheld.
In his majority opinion in the case, the Chief Justice Rehnquist wrote that Congress had been justified in passing the FMLA to combat what he called the “significant” problem of women facing employment discrimination because employers assumed they would have to take more time off than men to care for their families. He wrote:
Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.
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.
Fast forward to today, when Pillard is one of President Obama’s three nominees to fill vacancies on the influential D.C. Circuit. Right-wing groups, upset by Pillard’s success defending women’s rights in the courts -- she also wrote the legal briefs that convinced the Supreme Court to open the Virginia Military Institute to women – are now looking for any reason to keep her off the court, and have seized on Hibbs.
This summer, the Family Research Council sent out an email to its members attacking Pillard for saying that assumptions about women’s roles in the home present “a self-fulfilling cycle of discrimination” – words that were, in fact, written by Chief Justice Rehnquist. The FRC later corrected itself, but the quote was so abhorrent to the far right that it stuck.
On his Crosstalk program yesterday, VCY America host Jim Schneider repeatedly cited the quote in an interview with the National Abstinence Education Association’s Valerie Huber, claiming that Pillard had argued “that in celebrating motherhood, society is creating a ‘self-fulfilling cycle of discrimination.’” Huber, in turn, took that as evidence that Pillard is indeed a “radical feminist.” The quote has also turned up in various conservative outlets.
We have no doubt that the FRC’s original misreading and then VCY’s face-value reading of FRC’s old email were honest mistakes. But this is a revealing game of telephone. The fact that a straight-forward statement about sex discrimination written by one of the most conservative justices in recent history engenders such anger on the Right says much more about those attacking Pillard than it does about their target.
WASHINGTON – The Senate today failed to overcome a GOP filibuster of the nomination of Patricia Millett to the U.S. Court of Appeals for the District of Columbia Circuit. Millett is the first of President Obama’s three nominees to fill vacancies on the court; Professor Nina Pillard and Judge Robert Wilkins have both been approved by the Judiciary Committee and are awaiting floor votes. Every Republican senator except for Senators Collins and Murkowski voted to continue the filibuster of Millett’s nomination, although none presented any objection to her qualifications or character.
Immediately before rejecting cloture on Millett’s nomination, Senate Republicans also blocked the nomination of Rep. Mel Watt to head the Federal Housing Finance Agency.
The following statement can be attributed to Marge Baker, Executive Vice President, People For the American Way:
Today, we saw Republican scorched-earth politics at its worst.
Patricia Millett is an extraordinarily qualified nominee for an extremely important court, yet Senate Republicans are denying her a confirmation vote simply because she was nominated by President Obama.
The GOP’s unprincipled blockade of D.C. Circuit nominees is unprecedented, and it’s shameful. Instead of giving Patricia Millett, Nina Pillard and Robert Wilkins fair hearings and yes-or-no votes, Republicans are blocking all three just to keep President Obama from fulfilling his Constitutional obligation to fill existing vacancies on the critically important federal courts.
This is the kind of reckless tactic that led to this month’s government shutdown. Unable to win national elections, Republicans are instead attempting to legislate through obstruction. First, they put hundreds of thousands of Americans out of work and threatened to disrupt the world economy in a futile attempt to eliminate a duly enacted law. Now, they’re refusing to fill vacancies on the federal courts because they don’t like the president who’s nominating judges.
Americans see these partisan obstruction tactics for what they are. This is the kind of behavior that has sent public approval of the Republican Party into the gutter, and it is not the kind of move that Americans will forget. We will continue to fight for the confirmation of all three of these highly qualified nominees to this important court.
Unable to come up with any legitimate reason to filibuster President Obama’s three nominees to the Court of Appeals for the D.C. Circuit, Senate Republicans have landed on a not-so-convincing excuse: They claim that the court has too many judges as it is and that it would be wasteful to fill its remaining vacancies.
Sen. Charles Grassley of Iowa has even gone so far as to introduce a bill that would permanently reduce the number of seats on the influential court from eleven to eight (the number of active judges currently sitting on the court), thereby preventing President Obama from placing any more nominees on the court. (The president has had one nominee confirmed to the DC Circuit, compared to four nominees under President Bush and eight under President Reagan).
Grassley’s bill would reduce the number of slots on the DC Circuit by three and “reallocate” two of those seats to circuits that he contends need the judges more.
There are a number of gaping flaws in Grassley’s logic, the first of which is that he and his fellow Republicans were eager to fill the very same DC Circuit seats that they are now trying to eliminate back when President Bush was the one making nominations.
Then, there’s the fact that there seems to be absolutely no basis for reallocating the two D.C. Circuit seats to the Eleventh and Second circuits. The official office that evaluates the needs of federal courts and makes recommendations for adding and removing seats doesn’t include the D.C. Circuit in its recommendations because the court’s caseload is uniquely complex and difficult to compare to that of other courts…and it also hasn’t recommended that the Eleventh or Second circuits get new judges.
This was confirmed by a former Chief Judge of the Eleventh Circuit whose statement [see p. 34 of this pdf] was submitted into the Senate record last month confirming that his former court indeed does not need new judges:
Since my appointment to the Eleventh Circuit on October 1, 1990, the judges of our court annually have voted whether or not we should ask Congress to authorize more federal judges. Each time our court considers the topic, an overwhelming majority of our members have voted “no!”
Even one of the co-sponsors of the court-rigging bill – Sen. Jeff Sessions – has gone on record saying that the Eleventh and Second Circuits actually don’t need new judgeships.
All of which makes one suspect that of all the goals that Sen. Grassley might have in mind with the Court Efficiency Act, the efficiency of the courts is probably not one of them.
Later this week, the Senate will vote on ending the Republican filibuster of Patricia Millett, the first of President Obama’s three nominees to fill vacancies on the influential US Court of Appeals for the DC Circuit. Republican senators have no beef with Millett personally (she’s a renowned appellate attorney, military spouse and black belt), but they’re still threatening to block all three nominees because, they contend, President Obama is attempting to “pack” the 11-member court by going through the constitutionally mandated process to fill its three vacancies.
Backing up this obstruction effort, one familiar outside group has again stepped up to carry Republicans’ water: the Judicial Crisis Network.
In the 2004, as the battle was heating up over confirming some of President Bush’s most far-right nominees, former Bush-Cheney religious right outreach staffer Gary Marx and former Justice Thomas clerk Wendy Long teamed up to found a group called the Judicial Confirmation Network, housed in the offices of the right-wing American Center for Law and Justice and dedicated to “working to ensure a fair appointment process of highly qualified judges and justices.”
Four years later, the Judicial Confirmation Network found itself in a bind when President Obama was elected to be the one nominating federal judges. All of a sudden, JCN lost interest in working to confirm “highly qualified judges and justices” to the bench. So, in 2010 the group changed its name to the Judicial Crisis Network and announced that its mission would heretofore be “to confront the radical legal and legislative threats facing our country” – that is, trying to prevent President Obama from filling seats on the federal courts with highly qualified judges and justices.
Today, the Judicial Crisis Network has emerged as the primary outside group working to prevent the Senate from confirming President Obama’s three nominees to fill the three vacancies on the influential US Court of Appeals for the District of Columbia Circuit. JCN is running radio ads targeting moderate senators urging them to filibuster the three nominees and has launched a snazzy website with infographics purporting to show that President Obama’s nominating qualified people to existing judicial vacancies amounts to “court packing.”
Our colleague Paul Gordon has done a thorough point-by-point takedown of JCN’s “court packing” infographics, but the bottom line is this: Like Senate Republicans who are now trying to permanently cap the DC Circuit at eight judges, JCN sang an entirely different tune when it was a Republican president was doing the nominating.
In the era when JCN was the Judicial Confirmation Network, President Bush had four nominees confirmed to the DC Circuit, bringing its total number of active judges up to 11. Meanwhile, due to Republican obstruction, President Obama has had just one nominee confirmed to the court, bringing the total number of judges on the court to eight.
JCN and Republican senators contend that the DC Circuit’s caseload is significantly lower now than it was then, meriting a reduction of the number of judges on the court. That’s simply not true [pdf]. For instance, in June 2005, when the Senate confirmed far-right Bush nominees Janice Rogers Brown and Thomas Griffith to the tenth and eleventh seats on the DC Circuit, there were 1,313 cases pending before the court. Today, as the GOP is trying to cap the court at eight judges, it is facing 1,479 pending cases.
In 2005, the Judicial Confirmation Network was reminding senators of their “obligation to bring these nominations to the floor for a fair vote.” Today, the Judicial Crisis Network is urging senators to deny floor votes to nominees in the same position.
Later today, JCN’s chief counsel Carrie Severino will be a witness at a House hearing on the DC Circuit titled “Are More Judges Always the Answer?” We can guess that Severino’s public answer to that question will be “no.” But a more forthright answer would be, “It depends who’s nominating them.”
President Obama has nominated three extraordinarily well qualified individuals to serve on the influential U.S. Court of Appeals for the D.C. Circuit. But the Republican Party's intransigence and opposition have turned this into one of the most important obstruction fights we've seen in the last five years.
On Tuesday, September 24, People For the American Way hosted a telebriefing with U.S. Senator Richard Blumenthal (D-CT) to discuss the matter.
Senator Blumenthal, who sits on the Judiciary Committee, chaired last week’s hearings on the nomination of Nina Pillard to a seat on the D.C. Circuit. He gave a first-hand account of how very qualified she is to serve on this all important court. He explained how important the D.C. Circuit is in the federal judicial system, why it’s important to fill the current vacancies on the court, and how Pillard exemplifies the brilliance and integrity that is so important in filling these vacancies.
Listen to the call for yourself here:
We had a lot of questions from callers about the need to overcome the GOP’s obstruction on these nominees and talked about how important it is for constituents to let their Senators know that it’s time for the obstruction to end.
Thanks to all the PFAW members who the time to join our call. We’ll continue to fight to make sure President Obama's nominees get the simple yes or no votes they deserve.
The former George W. Bush administration official who founded a group to push for the confirmation of Bush’s judicial nominees has come up with the most ridiculous justification yet for a possible Republican filibuster of President Obama’s three nominees to vacancies on the Court of Appeals for the District of Columbia Circuit. In a Washington Times column today, C. Boyden Gray argues that Obama’s filling all the seats on the court is in fact a "drive to pack" the court and would “risk politicizing an institution that is – and should be – above politics” and lead to a loss of “collegiality” among the judges on the court.
Gray’s concern for the independence of the judiciary is admirable, but it’s interesting that he seems to have developed this concern only when a Democratic president started nominating judges.
In fact, Gray seems to have held the opposite view of what to do with the D.C. Circuit during the George W. Bush administration, when he founded and led an organization dedicated to getting President Bush’s most conservative nominees confirmed to the federal courts. Among the nominees Gray worked to confirm were current D.C. Circuit judges Thomas Griffith, Brett Kavanaugh and Janice Rogers Brown, who have given the court a serious right-wing ideological bent, and now- Supreme Court Chief Justice John Roberts. In total, thanks in part to Gray, Bush had four nominees confirmed to the D.C. Circuit, filling all eleven of the twelve seats then available.
In contrast, President Obama has had just one nominee confirmed to the D.C. Circuit in his five years in office, bringing the total number of judges on the court up to eight out of eleven designated seats. This puts him far behind all of his recent predecessors in placing judges on the court. In fact, every president since Jimmy Carter, going through the process laid out in the Constitution, has had at least three nominees confirmed to the D.C. Circuit.
So, why does Gray think President Obama’s nominees would so unbalance the careful social order of the court? He cites the effort that Judge Harry Edwards, a Carter nominee, made in the mid-1990s to get judges on the court to work together across ideological lines, and Judge Edwards’ observation that “smaller courts tend to be more collegial.” Which is a great argument for confirming judges who are skilled at working across ideological lines (for instance, Nina Pillard) but makes no sense as an argument simply not to let a given president fill seats on the court.
In the column, Gray also backs Chuck Grassley’s effort to eliminate the three D.C. Circuit seats to prevent President Obama from filling them and transfer two to other, less influential, circuits – a plan that has no backing in actual caseload data.
If these are the logic-jumping lengths that conservatives have to go to justify their all-out obstruction of President Obama’s judicial nominees, maybe it’s time they just gave up and admitted that they just don’t want to let President Obama do his job.
Yesterday, the Senate Judiciary Committee voted along party lines to approve the nomination of Georgetown Law professor Cornelia “Nina” Pillard to the Court of Appeals for the District of Columbia, which is often considered to be the nation’s second-highest court. The party-line vote wasn’t exactly a surprise – Republicans have decided they don’t want President Obama to fill any of the D.C. Circuit’s three vacancies, so have voted against both nominees who have come before them so far – but the content of at least some GOP senators' objections to Pillard was notable.
Specifically, both Republican senators who chose to speak on their decision to vote against Pillard went out of their way to object to Pillard’s record on women’s equality.
Yes, the Republican “rebranding” effort is going so well that they are now threatening to hold up a judicial nominee because she believes that men and women should be equal in the eyes of the law and has been very successful in arguing that view in the courts.
Pillard has a long record of working with Republicans and Democrats to defend women’s equality: She worked with the Bush administration to successfully defend the Family and Medical Leave Act in the Supreme Court and crafted the arguments that convinced the Supreme Court to open the Virginia Military Institute to women (which earned her the respect of, among others, the head of the school who was at the time opposed to allowing women in).
She also has worked on women’s equality issues as an academic, including questioning abstinence-only education that presents a double standard to boys and girls…which is what has sent the far right into a fit.
At yesterday's committee vote on Pillard’s nomination, both Sen. Chuck Grassley (the ranking Republican on the committee) and Sen. Orrin Hatch lifted talking points from right-wing activists like the Family Research Council, Phyllis Schlafly and Ed Whelan of the National Review to attack the nominee’s academic writings on reproductive rights and abstinence education and to even, bizarrely, question whether she appreciates the “benefits of marriage.”
And then every single Republican on the committee voted against allowing her nomination to go to the full Senate for a vote.
To put this in context, Republican senators including Grassley and Hatch were quick to defend demand the confirmation of George W. Bush judicial nominees who made rape jokes and belonged to clubs that excluded women and espoused any number of offensive views, claiming that they could hold these personal views and still be fair judges. As PFAW's Drew Courtney wrote in the Huffington Post yesterday:
Too often we're told that judicial nominations fights are too complicated, too subtle to get major national attention. Not this time. The Republican message is crystal clear: rape-joke making, gay-bashing, abuse-defending, discrimination-supporting, law-skirting, ideology-pushing Republican men are welcome to be judges in our federal courts.
Women who expect to be treated as equals are not.
Georgetown Law professor Nina Pillard, who has had a long and impressive career in law and public service, was approved today by the Senate Judiciary Committee to serve on the Court of Appeals for the District of Columbia. Her nomination now goes to the full Senate.
Scores of people and organizations who have worked with Professor Pillard or observed her work have written to the Senate in support of her nomination. Her supporters include:
Alumni of the Virginia Military Institute, which Pillard helped open to women:
VMI gauges its success as an institution by measuring the societal contributions of its alumni. Professor Pillard would rank high for her work to open VMI to female cadets. The case was initiated by the George H.W. Bush Administration and made its way to the Supreme Court during Professor Pillard’s tenure at the office of the Solicitor General of the United States. Professor Pillard drafted the five Supreme Court briefs for the United States and her winning arguments opened VMI’s doors for women who have become leaders in the armed forces, elsewhere in public service, and in the private sector.
Josiah Bunting III, superindent of the Virginia Military Institute when women were first admitted:
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.
A bipartisan group of former attorneys of the Justice Department's Office of Legal Counsel, where Pillard served for two years:
We believe that Ms. Pillard has the skill, character, and objectivity that would make her a superlative judge on the D.C. Circuit. She was a respected leader and trusted advisor in OLC, valued for her fair-minded and meticulous approach to legal questions of all sorts. She is an exemplary nominee whom we wholeheartedly endorse.
Dozens of retired members of the armed forces:
Our experience advocating for the full participation of women in the armed forces has shown us that women, indeed, are suited for rigorous military training, service, and leadership. Our military and our nation benefit when both women and men are able to fully contribute to the defense of our country. We support Professor Pillard’s nomination because her accomplishments and credentials demonstrate that she has the qualifications to be a federal
appellate judge, and because her dedication to principles of equality demonstrates that she will be a great one. We urge you to give her a swift and fair hearing, and vote to approve her nomination.
In her legal advocacy and scholarship, Professor Pillard shows a clear understanding offundamental distinctions between the roles of courts and the political branches, and between law and culture, morality, politics or other important sources ofnorms that guide and constrain human behavior. Throughout her work, she has shown an appreciation ofnuance and respect for opposing viewpoints, grounded in a profound commitment to fair process and fidelity to the law.
In short, Professor Pillard is a talented advocate, a brilliant legal mind, a sensible and moderate problem solver, and a careful thinker who has devoted her career to public service and work for others. We wholeheartedly urge that you confirm her to the D.C. Circuit.
Prominent prosecutors and law enforcement officials:
We urge her confirmation because she is unquestionably eminently qualified, and is a sensible and fairminded lawyer and scholar who has worked extensively with law enforcement in her career. She brings to the bench sensitivity to the compelling need for effective and legitimate law enforcement in the modern era. She stands for fidelity to the law above all, and has demonstrated an unwavering commitment to the important, albeit limited, role of the courts in our federal system
I believe that Ms. Pillard has had invaluable work experience that makes her especially well-suited to the bench. While I do not know Ms. Pillard personally, others in the law enforcement community whom I know and respect are supporting her, and their views, combined with her superb experience and qualifications, convince me that she would make an excellent judge, especially on the DC Circuit, which requires someone with such experience and qualifications.
Based on our long and varied professional experience together, I know that 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.
As we do not share academic specialties, I have not studied Professor Pillard's writings in full, but I know her to be a straight shooter when it comes to law and legal interpretation. 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.
Ms. Pillard’s record of achievement, and unanimous rating of Well-Qualified, the highest rating available, from the ABA’s Standing Committee on the Federal Judiciary, reflects her significant talents as an appellate litigator and scholar. Her legal career is remarkable for her accomplishments and the breadth and depth of her experience, and her reputation for fairmindedness, collegiality, and dedication to principles of equal justice is well founded.
WASHINGTON – People For the American Way Executive Vice President Marge Baker issued the following statement in response to the Senate Judiciary Committee’s approval of the nomination of Georgetown Law professor Cornelia T.L. “Nina” Pillard to the U.S. Court of Appeals for the District of Columbia.
Professor Pillard’s nomination is now with the full Senate, which I hope will give her the fair consideration that she deserves.
Professor Pillard is an exceptionally qualified nominee. She has earned enormous respect from her colleagues across the ideological spectrum in her career as an appellate attorney, where she crafted the arguments that convinced the Supreme Court to open the Virginia Military Institute to women and joined the Bush administration in successfully defending the Family and Medical Leave Act. She now serves as co-director of Georgetown’s renowned Supreme Court Institute, which on a pro bono basis helped prepare attorneys for every single Supreme Court argument in the last term – regardless of the side of the case they were on. Her national reputation as a supremely talented and consistently fair attorney is well-earned.
In addition, Professor Pillard would become just the sixth women confirmed to the D.C. Circuit Court in its 120-year history.
In looking for excuses to avoid confirming Professor Pillard to this vacancy, some on the Right have attacked her academic work promoting the entirely mainstream notion that men and women should be treated equally under the law. The fact that in 2013 a nominee is being attacked for believing in women’s equality is just absurd.
We applaud the Judiciary Committee members who voted in support of this highly qualified nominee, and hope that the full Senate will review her qualifications and give her a fair yes-or-no confirmation vote.