Will Democrats Sacrifice the Nina Pillard Nomination to ‘Save’ the D.C. Circuit Court of Appeals?

Republicans double-down on threats to filibuster President Obama's judicial nominees. Will Senate Democrats fight back?

Nina Pillard, in an interview with the American Constitution Society. American Constitution Society / YouTube

On Wednesday, the Senate Judiciary Committee took up the confirmation of Judge Robert Wilkins to the D.C. Circuit Court of Appeals.

Republicans are waging a war on President Obama’s nominees to the second most powerful court in the nation, sinking the nomination of Caitlin Halligan and threatening to filibuster the remainder of the president’s nominees in a bid to keep the current ideological balance of the court tilted conservative. But during Wilkins’ confirmation hearing, new signs emerged that Republicans may be backing down on their plans to stack the court, but at the cost of the nomination of Nina Pillard, a Georgetown University law professor and strong advocate of gender equality and reproductive choice. The committee is expected to vote on Pillard’s confirmation to the D.C. Circuit Court on Thursday.

The Senate Judiciary Committee has developed a sort of routine to the fight over the D.C. appellate nominations. The confirmation hearings typically open with Republican and Democratic senators debating the workload of the D.C. appellate court and whether or not the court would need to fill its open seats. Sen. Charles Grassley (R-IA) leads for the Republicans, with Sens. Sheldon Whitehouse (D-RI) and Patrick Leahy (D-VT) rebutting on behalf of Democrats. But last week, Sens. Grassley, Whitehouse, and Leahy instead submitted all those arguments for the record.

Why would they do that? As Ian Millhiser at ThinkProgress suggests, they did it because earlier in the week a conservative judge described to the same Senate Judiciary Committee the deep problems with Grassley’s proposal to cut three seats from the court. Judge Timothy Tymkovich, a George W. Bush appointee to the Tenth Circuit Court of Appeals, appeared before the judiciary committee in his capacity as chair of the federal judiciary committee that analyzes court caseloads and determines which courts are overworked and which are underworked. Notably, Tymkovich’s committee didn’t recommend cutting a single seat from the D.C. appeals court.

We know Republicans don’t take a loss well, so if Grassley’s proposal to cut the D.C. appellate court off at the knees is really dead, Grassley signaled during Wilkins’ confirmation hearing that it may cost Democrats the Pillard nomination.

During Wilkins’ hearing, Grassley read aloud passages from a 2007 article that Pillard wrote about abortion, access to contraception, and the connection between reproductive rights and gender equality. But instead of disclosing the author of the article to Wilkins, a current judge on the U.S. District Court for the District of Columbia, Grassley suggested he was going to pose a series of “assertions regarding constitutional law” and asked Wilkins to simply say whether he agreed or disagreed in order for Grassley to get a sense of his “judicial philosophy.”

“Reproductive rights should be doubly constitutionally protected by the overlapping liberty and equality guarantees,” said Grassley at the hearing, according to the Huffington Post. “Um, I’m not sure of the context for the quote, senator,” Wilkins said; the Huffington Post reported that he grasping for words for a moment. “My understanding of the law in that area is that reproductive rights are founded upon the rights to privacy in the Constitution. And, of course, I would follow whatever the Supreme Court precedent is in that regard.”

Grassley took up his second point. “Reproductive rights, including the rights to contraception and abortion, play a central role in freeing women from historically routine conscription into maternity,” he read to Wilkins and the committee. “Again, I don’t know the context of that quote, sir,” said Wilkins. “But I would follow the Supreme Court precedent in this area, as I have all other precedent when I handle cases.”

By Grassley’s third “assertion,” Wilkins was clearly confused by what was transpiring. “[R]eproductive rights really are fundamentally about sex equality,” Grassley read. “Um, again, I’m not familiar with that statement so it’s hard for me to react to it, sir,” he said. “So I really don’t know what else to say about it.”

Near the close of the hearing, Grassley warned Wilkins that his legal qualifications have little to do with the confirmation battle ahead and that even a normally shoe-in nominee like Wilkins wasn’t guaranteed a full Senate vote. “Just so that you know this is a debate that is beyond you as an individual, although it could impact you, whoever wins that debate,” Grassley said to Wilkins. “We’ll leave that for another day.”

Grassley’s preoccupation with Pillard’s position on contraception, reproductive rights, and equality is especially telling given Wilkins’ role on the D.C. Circuit Court, including his role serving on a three-judge panel that refused to allow Texas to implement its controversial voter-identification law. That law continues to be a major legal issue, even since the U.S. Supreme Court in June gutted a key provision of the Voting Rights Act. But that topic, and just about any other that would normally be considered “controversial,” didn’t come up. Instead, Pillard’s views on gender equality dominated conservative concerns, a preview for her upcoming vote later this week.

The Senate floor debate over these nominees remains, as does the looming threat of a Republican filibuster to one, or all, of them. And there has been no indication from Senate Majority Leader Harry Reid (D-NV) on when he might push for full Senate votes for the nominees, let alone how hard he’s willing to fight for Pillard’s nomination should she make it out of the committee. And that, right there, sums up the real challenge facing President Obama’s strongest female judicial candidates. The attacks launched against nominees Halligan and Pillard are expected from Republicans. But so is a full and vigorous push for confirmation by the Senate, and so far Reid hasn’t shown that this is a fight he has in him.