by Richard W. Painter, the S. Walter Richey Professor of Corporate Law, University of Minnesota Law School. Mr. Painter served as the Associate Counsel to the President in the White House Counsel’s Office as the chief ethics lawyer (2005-2007). Painter is co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations.”
Cornelia Pillard, who has been nominated by President Obama to the U.S. Court of Appeals for the District of Columbia Circuit, has been favorably reported out of the Senate Judiciary Committee. She still, however, awaits a vote by the full Senate on her nomination. The vote should be held promptly, and should be in the affirmative.
I have no personal or professional connection with Pillard (pictured), but I believe it is important for the Senate to confirm qualified nominees for the federal judiciary, and she is one of them.
I have not seen a record of appellate advocacy as impressive as Pillard’s since I worked in the White House Counsel’s Office on the 2006 nomination of John Roberts to become Chief Justice of the United States.
Pillard has worked with a broad range of distinguished appellate lawyers on a wide range of cases, and she knows how courts properly decide cases. Lawyers like Pillard who have in depth experience in appellate advocacy understand the limited role of judges in interpreting and applying the law and know that responsible judges will not assume the role of elected legislators, who make laws. We would significantly diminish the risk of having an activist judiciary if all or most federal appellate judges were to have appellate advocacy experience similar to Pillard’s before they go on the bench. The Senate should not pass up an opportunity to confirm a nominee who has such experience and who will likely impart some of her wisdom and constraint to colleagues on the court.
I have examined Pillard’s scholarly publications and other work and see no signs that she departs from the political mainstream. Law professors, unlike judges, have the liberty to advance a wide range of views and approaches to the law in their publications. Pillard, however, has articulated arguments for views that are already widely held and has not advocated an unnecessarily expansive role for the courts in shaping public policy. Most important, given the seriousness of her approach to the law, it is extremely unlikely that she would tolerate any type of politicization of the federal courts.
Finally, the one thing the Senate must do is vote on Pillard's nomination, one way or the other. The public has had enough of elected officials who allow partisanship to prevent them from doing their jobs, and in this case it is the Senators' job to vote, and not to indulge in the pathetic excuse for not voting that is sometimes called the filibuster.