Smearing Stellar Legal Record, Republican Sens. Seek to Keep D.C. Circuit Seats Vacant

July 25, 2013

by Jeremy Leaming

Even after reaching a deal to move along some executive branch nominations, a gaggle of Republican senators is showing how far it is from giving up on obstructing President Obama’s nominations for long-standing vacancies on the federal bench.

Yesterday’s Senate Judiciary Committee hearing to consider the nomination of Cornelia “Nina” Pillard to one of the three vacant seats on the U.S. Court of Appeals for the District of Columbia Circuit, has drawn quick attention from reporters, scholars and activists for some of the accusations lobbed at Pillard, a professor at Georgetown University Law Center with a varied and deep legal career. (And Sen. Charles Grassley (R-Iowa) kept insisting the D.C. Circuit, which hears some of the most complex and time-consuming legal matters of all the appeals court circuits doesn’t need any more judges. But Patricia M. Wald, who served for 20 years on the D.C. Circuit, five of them as its chief judge, provides reality here.)

But Sens. Mike Lee (R-Utah) and Ted Cruz (R-Texas) tried mightily to paint Pillard as unfit to serve on the federal bench. Pillard (pictured) has a widely respected legal career, including varied scholarship, and extensive work as an attorney for the federal government, including the Solicitor General and the Office of Legal Counsel; for mainstream boards seeking to provide services to multinational corporations, such as the American Arbitration Association, and for the long-respected civil rights group, the NAACP Legal Defense and Educational Fund. But in their questions Lee and Cruz seemed to misstate or misrepresent what Pillard had said in writings and briefs she had authored years before. 

Pillard has not only taught law, she’s practiced law representing the federal government and individuals seeking to enforce Congress's civil rights laws. But Lee and Cruz during the Senate committee hearing labored to create a far different picture. Specifically they focused on a short symposium article she wrote more than a decade ago that sought common ground on the divisive issue of reproductive choice, and an amicus brief she wrote in support of lower court decisions that had held Operation Rescue accountable for physically blocking women's access to family planning facilities. 

But Lee and Cruz seemed either to misunderstand or misrepresent Pillard's own words. For example, Cruz claimed that Pillard had once written that abstinence-only education was constitutionally suspect. She did not and tried to explain it to the senator. Pillard pointed out that her article merely argued that such programs should not be bound by stereotypes. Instead she explained that abstinence-only education should be taught without promulgating stereotypes. Moreover that article was intended for policymakers offering ways to bridge a gap between anti-abortion activists and women’s rights advocates by identifying initiatives both sides could agree upon that would reduce the incidence of abortion.

Cruz and Lee continued their misrepresentation of Pillard's legal work, claiming that in an amicus or friend-of-the-court brief that she equated anti-abortion activists to violent white supremacists, like the KKK. Again, the senators either did not read the brief or they shamelessly took parts of it out of context to tar Pillard. In reality Pillard argued that a civil rights law was aimed at private groups that interfered with or ‘hindered’ the police’s ability to protect people’s rights, no matter who the private groups were. In no way could the brief be read to say that a moral equivalency exists between anti-abortion activists and violent groups like the KKK.

Pillard in fact has a stellar record reflecting moderate views, and has received the support of Republicans, former law enforcement and military officials, conservatives, and many leading members of the Supreme Court bar from both parties.

Sen. Judiciary Chairman Patrick Leahy (D-Vt.) noted that Pillard “has had a distinguished career as a practitioner, as an academic … she’s argued nine cases before the Supreme Court … spent her legal career in public service … and for the past 13 years, she’s worked as a professor of my alma mater, Georgetown University Law Center.”

As noted by Georgetown Law, Pillard’s nomination has the support of an array of legal luminaries. “Pillard’s confirmation hearing drew letters of support from lawyers in the Office of Legal Counsel, former prosecutors and law enforcement officials, Supreme Court practitioners, Virginia Military Institute alumnae, military officers and deans from law schools across the country. She also received support from such individuals as Viet Dinh, a Georgetown Law professor and former assistant attorney general in the George W. Bush administration and William Sessions, who was appointed by President Ronald Reagan as director of the Federal Bureau of Investigation in 1987 and had served until 1993.”

Pillard, who heads Georgetown’s Supreme Court Institute, also as People For The American Way’s Drew Courtney notes, has drawn strong and varied support from the Supreme Court Bar, “including Carter Phillips, Andrew Pincus, Lawrence Robins and Charles Rothfield (all attorneys in the Solicitor General’s office under President Ronald Reagan).” They signed onto a letter sent to Senate leaders calling for Pillard’s confirmation.

For more information on the number of vacancies on the federal bench, see JudicialNominations.org.