Conservative Lawmakers Look to Sink Another Female Nominee to the Federal Bench

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Analysis Law and Policy

Conservative Lawmakers Look to Sink Another Female Nominee to the Federal Bench

Jessica Mason Pieklo

Republican senators have made it clear they'll do whatever it takes to keep Georgetown law professor Nina Pillard off the D.C. Circuit Court of Appeals.

In April, anti-choice activists teamed up with the National Rifle Association of America to sink the nomination of Caitlin Halligan to the D.C. Circuit Court of Appeals. Despite assurances from Republicans that they were done playing games with the confirmation process, it looks like they’re up to it again, this time threatening to sink the nomination of Georgetown law professor Nina Pillard.

The Senate Judiciary Committee took up Pillard’s nomination to the D.C. appellate court on Wednesday, and as was clear in the Halligan confirmation hearings, what Republican senators fear most is a smart, capable advocate for equality on the bench. Over at ThinkProgress, Ian Millhiser drew parallels between Pillard’s career and that of Justice Ruth Bader Ginsburg’s, and it’s a parallel that offers important insights into the state of the federal judiciary and, more specifically, conservative efforts to keep control over it. As Millhiser notes, both Ginsburg and Pillard worked for the American Civil Liberties Union, both became leading scholars of civil procedure at top law schools, and both litigated some of the most important cases on women’s rights to reach the Supreme Court. Given Pillard’s pedigree as a formidable women’s rights attorney, it’s hardly a surprise Republicans oppose her.

Much in the way conservatives approached the Halligan nomination with a whisper campaign that reached a crescendo right before her hearing, when the Senate Judiciary Committee took up Pillard’s nomination the Family Research Council urged Republicans to block her, describing Pillard as a “militant” feminist and a “radical ideologue.” It’s worth noting those descriptions came from Ed Whelan of the National Review Online, a former law clerk to Supreme Court Justice Antonin Scalia. Conservatives, it appears, have no sense of irony.

As if on cue, Sen. Ted Cruz (R-TX) led the religious conservatives’ charge against Pillard. “I have concerns about your nomination,” the senator said. “The primary source we have are your academic writings, and those writings to me suggest that your views may well be considerably out of the mainstream.” The views Cruz and his conservative allies Jeff Flake (R-AZ) and Chuck Grassley (R-IA) are apoplectic about are, essentially, nothing more than standard pro-equality approaches to the labor market. According to Pillard’s writings, there are three main areas that keep women from achieving their full economic potential: “sex-role stereotyping in sex education, insurance policy exclusions of women’s contraceptive health care, and shortfalls in work-family policies in our historically male-oriented labor market.”

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But perhaps more disturbing to the conservatives considering her nomination, Pillard has been an important advocate in advancing a sex-positive view of gender equality because, as Pillard has noted repeatedly, without addressing purity culture there is no way to permanently eradicate the inequality that stems from it. As Pillard explains in her writing:

Girls and women disproportionately are taught to be in denial about their own sexual urges, and yet rely inappropriately on their sex appeal. The denial occurs both ways: Women are expected to deny the presence of their sexual desire (to guard chastity), and to deny its absence (to be sexually responsive to men). In a world in which such denial is the norm, women will lack the kind of agency and responsibility needed to meet their own desires for pleasure, well-being, support, and meaning in their lives.

The article, which addresses this need for sex-positivity as a critical component to women’s equality, explored that issue as it relates to teaching abstinence-only sex education. According to Pillard, abstinence-only programs are arguably unconstitutional. The heart of Pillard’s argument is that “[i]f it is contrary to [the Constitution] to make even formally neutral governmental decisions based on sex stereotypes, it would seem, a fortiori, unconstitutional to teach those same views in public schools.” As Pillard explained, the Constitution views “gender-based classifications” with skepticism in order to ensure that such classifications “are not based on the entrenched and pervasive stereotypes which inhibit women’s progress in the workplace.”

Pillard’s article takes the idea of the relationship between sex stereotyping and uses it to document several examples of abstinence-only curricula that seem designed to perpetuate these very stereotypes:

Women, one abstinence-only curriculum teaches, need “financial support,” whereas men need “domestic support” and “admiration.” Another maintains that “[w]omen gauge their happiness and judge their success on their relationships.” Men’s happiness and success hinge on their accomplishments. Young women, according to a leading abstinence-only curriculum, “care less about achievement and their futures” than do their male peers. These curricula suggest that there are two tracks in sex and two tracks in life, one male, and one female?

Naturally, Pillard’s opposition to teaching young women that they need “financial support” and that it is their job to “admire” their husbands did not sit well with Cruz. “I find that an extraordinary position, and if that is unconstitutional it is hard to imagine what decisions are beyond the ambit of federal courts,” Cruz told her.

But Pillard didn’t flinch in responding to Cruz, saying she would want her two teenage children to be taught how to say no to sex, and she sees no constitutional objection to such programs, unless of course they rely upon and promulgate sex stereotypes, which most abstinence-only programs do. She then further put these types of writings in context with how she would rule from the bench. “This is an academic article,” Pillard said. “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.”

It wasn’t just Pillard’s view on female sexuality and abstinence-only education that have conservatives on the committee in a fit. Sen. Lee, during his questioning, said Pillard, in one academic article, called “pro-life” protesters “militant” and compared them to the Ku Klux Klan for using domestic terror tactics to dissuade women from exercising their constitutional rights. Conservatives who are unilaterally focused on shutting down all abortion clinics in the country took issue with Pillard’s straight-talk on clinic violence and its perpetrators and enablers.

It’s no secret Republicans strongly oppose any confirmation of President Obama’s judicial nominees. And with the Senate embroiled in an internal partisan fight about how White House nominees are treated and whether or not any meaningful filibuster reform would happen in response to Republican obstructionism, Pillard’s nomination looks shaky; it would likely be the one to go should Sen. Harry Reid (D-NV) cut a deal, again, with Republicans. Sen. Grassley, who is leading the fight against the president’s nominees, used Pillard’s hearing Wednesday to again argue the D.C. Circuit isn’t busy enough to need any more judges. In defense of his bill to strip the courts of three of its judges, Sen. Grassley didn’t rely on actual caseload statistics or data on the role the D.C. Circuit plays in the federal judiciary overall. Instead, he presented anonymous statements from allegedly sitting D.C. Circuit judges, who said new judges are not needed. According to Grassley, he sent sitting D.C. Circuit judges letters to ask if they felt like they could handle the current workload. “I asked the judges whether, based on their experience, the workload on the D.C. Circuit warranted additional judges,” Grassley said. “I also asked that those who cared to respond, to do so anonymously, so they could feel free to speak candidly.”

Democrats, for once, appeared ready for this kind of absurdity. Sen. Richard Blumenthal (D-CT), who chaired the hearing, said he would “enter into the record statements from present and former members of the court who have commented—for the record, not anonymously—their views on the workload of the court.” Those statements included former D.C. Circuit chief judges who are now senior judges on the court: Harry Edwards, Laurence Silberman, and Douglas Ginsburg. It also includes statements from former D.C. Circuit Chief Judge Patricia Wald and Chief Justice John Roberts, “all indicating very strongly and unequivocally that the workload of this course is certainly a tremendous challenge and growing rather than diminishing,” Blumenthal said.

Should Pillard’s nomination fail then, like Halligan, it would be the result of conservative ideologues successfully and brazenly gaming the process and Democrats, again, failing to fight back hard enough. There’s no reason to keep Pillard, let alone Halligan, off the federal bench except for a belief that a diverse federal bench is an inherent threat to conservative ideology, especially when that diversity includes women with experience advocating for equality. Our federal courts will pass judgment on the entirety of the conservative social agenda—from the battle over contraception coverage, abortion access, gun restrictions, and voting rights. It’s no wonder Republicans are working so hard to keep control of it.