Can You Be Openly Pro-Choice And A Federal Judge? We’ll Find Out Next Week


Judge Nina Pillard

If you’re pro-choice, and you’ve openly admitted that fact, you probably shouldn’t plan on becoming a federal judge.

At least, that’s the lesson any reasonable observer would draw from the last several years. In a stark contract to President George W. Bush, who successfully appointed some of the nation’s leading judicial opponents of abortion rights to federal courts of appeals and the Supreme Court, President Obama’s been remarkably reluctant to nominate judges with demonstrably pro-choice records. That doesn’t mean that his judges oppose abortion rights, but it does mean that the best way to secure a nomination is to spend your career in the reproductive rights closet.

Which is why the nomination of Georgetown Law Professor Nina Pillard to the second most powerful court in the country is so remarkable. Pillard is one of the nation’s leading women’s rights attorneys, and she won one of the most important anti-gender stereotyping cases to reach the Supreme Court in the last few decades. She’s also openly and proudly supportive of women’s reproductive freedom. “[R]eproductive rights,” she explains in a law review article that’s been widely criticized by conservatives, “really are fundamentally about sex equality.” These rights, including the rights to contraception and abortion, “allow women to decide whether and when to follow the path of motherhood.”

Nominees like this do not come along every year — or even every third year. And if Senate Republicans get their way, they won’t come along again, period.

Senate Majority Leader Harry Reid (D-NV) is expected to call a vote to break the filibuster on Pillard’s nomination as soon as next Tuesday. She is one of three nominees caught in a larger battle over which party will control the United States Court of Appeals for the District of Columbia Circuit. Currently, Republicans dominate this court, and they’ve wielded this dominance to block environmental regulations that would save tens of thousands of lives, to undermine unions and to limit women’s access to birth control. If Pillard and her fellow nominees are confirmed to the three empty seats on this court, however, Democratic nominees will have the votes required to reverse ideological decisions from the court’s conservative bloc.

Senate Republicans don’t want that to happen, and Senate Minority Whip John Cornyn even openly admitted that he plans to filibuster all three of Obama’s nominees so that new confirmations won’t “switch the majority” on this Republican-controlled court. Most Senate Republicans, however, have stuck to a less partisan message to explain their filibusters — they claim that the DC Circuit is underworked, citing statistics indicating that the court hears fewer overall cases than some other federal appeals courts. This claim, however, is irrelevant. The reality is that the DC Circuit hears an unusually large number of time-consuming national security and regulatory cases — some of which require the judges and their aides to review records that literally take up entire rooms.

Moreover, it’s hard to ignore the fact that, when President Bush was naming judges, many of these same Republican senators voted to confirm a total of 11 active judges to the DC Circuit. Now that a Democrat is naming judges, however, they suddenly believe that the court can get by with just 8.

Yet, despite the Senate GOP’s generalized opposition to losing the Republican majority on a powerful court, the attacks on Professor Pillard took on a very different cast than the attacks on the other two nominees. Indeed, most Republican senators did not so much attack DC Circuit nominees Patricia Millett and Judge Robert Wilkins as inform them that they objected to President Obama’s decision to fill the vacancies they were nominated to.

Pillard, however, has faced much more personalized barbs. One influential conservative group slammed Pillard’s “militant feminism” and insisted that “America can’t afford to give a lifetime appointment to a radical ideologue!” Meanwhile, Sen. Ted Cruz (R-TX) led an assault on an piece Pillard authored opposing gender stereotyping in public school curricula.

In that piece, the same law review article where she links reproductive freedom to gender equality, Pillard questions the constitutionality of so-called “abstinence-only” curricula which teach that boys and girls should grow up to be just like Don and Betty Draper. Her article lists several examples of curricula she finds offensive to the Constitution:

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.

Citing several Supreme Court cases, including the gender equality case she argued and won, Pillard concludes 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.” Remarkably, however, Ted Cruz and others seem to believe that this view should disqualify her from the federal bench.

Nor is the opposition to Pillard limited to senators on the Tea Party fringe. Sen. Orrin Hatch (R-UT), who may be the closest thing to a moderate on the Republican side of the Senate Judiciary Committee, claimed that “[h]er writings in various areas including reproductive rights and the family do not simply take a liberal position, but adopt a rigid ideology that clearly drives not only her view of the law but even her understanding of social facts.” Sen. Chuck Grassley (R-IA) tried to trick Pillard’s fellow nominee Judge Wilkins into criticizing her views by reading some of her quotes supporting reproductive freedom and asking him whether he agrees with the out of context statement. It didn’t work.

Nevertheless, it is clear that the lion’s share of Senate Republicans would oppose Pillard even if she were nominated to a court they were not determined to keep in Republican hands, and that they oppose her specifically because of her views on reproductive choice.

Two years ago, Justice Ruth Bader Ginsburg predicted that her record as a women’s rights attorney for the American Civil Liberties Union “would probably disqualify” her from confirmation if she were nominated to the bench today. The Pillard nomination puts that prediction to the test. Few, if any, nominees since Justice Ginsburg have accomplished as much as Pillard accomplished to advance equality for women. If the Senate ultimately rejects her nomination, it will send a clear message that lawyers who share her commitment to equality and reproductive justice need not apply for the federal courts.

Indeed, we’ve seen this movie play out before. Shortly after moving into the White House, President Obama nominated a longtime federal trial judge named David Hamilton as his first judicial nominee. Though Hamilton was widely viewed as a moderate — the president of the local chapter of the conservative Federalist Society called Hamilton “an excellent jurist with a first rate intellect” whose “judicial philosophy is well within the mainstream” — Judge Hamilton soon found himself on the wrong end of a Republican filibuster after they discovered that he authored a series of decisions favoring abortion rights. A nominee President Obama selected because he believed that Hamilton would highlight the new president’s centrist credentials instead became a lightning rod and an unexpectedly difficult judge to confirm. Hamilton ultimately got through, but he got through at a time when a Republican filibuster was little more than a delaying tactic because Democrats controlled 60 votes. That kind of supermajority is unlikely to occur again anytime soon.

Since this incident, Obama has shied away from nominees that could rekindle a similar fight over abortion. If Pillard falls, it is unlikely that he will risk nominating a third openly pro-choice judge. Nor will it be easy to convince future Democratic presidents to make similar nominations during their tenure in office.

Ultimately, however, Pillard’s fate does not rest with the White House. Nor does it even rest with the Republicans expected to block her nomination next week. Rather, her fate rests with the Senate Democrats who have the power to end obstructionism in the Senate any moment they want. By invoking the so-called “nuclear option,” Senate Democrats can abolish the filibuster with a simple majority vote and eliminate the GOP’s power to veto nominees like Nina Pillard.

If they fail to do so, however, the future looks grim for pro-choice judges. Why would any president nominate another judge who’s championed reproductive freedom again, when he or she knows the nomination will always fall to a filibuster?