Two years ago, Justice Ruth Bader Ginsburg warned that her historic work for the ACLU to achieve constitutional equality for women “would probably disqualify me” from confirmation if she were nominated to the bench today. Twenty-three years after Justice Ginsburg became a judge, President Obama nominated another top women’s rights attorney to the court where Ginsburg began her service on the bench. How the Senate receives this nominee, Georgetown Law Professor Nina Pillard, will demonstrate whether Ginsburg was right that a lawyer whose career path parallels her own can no longer become a judge — and leading conservatives are already prepping to make Ginsburg’s fears a reality.
The parallels between Ginsburg’s and Pillard’s careers are striking. Both women worked for the ACLU. Both became leading scholars of civil procedure at top law schools. And both litigated several of the most significant women’s rights cases to reach the Supreme Court during their careers as practicing attorneys. Ginsburg, for her part, authored the brief in Reed v. Reed that led a unanimous Supreme Court to hold for the first time that the Constitution ensures equal rights under law for women. Her subsequent brief in Craig v. Boren convinced the Court that government gender discrimination will be subject to heightened constitutional scrutiny.
Nearly three decades after Craig, Pillard argued and won Nevada Department of Human Resources v. Hibbs before Ginsburg and her fellow justices — arguably the most important case in the last decade enabling women with families to have a fair opportunity to participate in the workplace. Similarly, Pillard litigated United States v. Virginia, which ended the Virginia Military Institute’s discrimination against women and cemented the modern rule that no law may treat women differently than men unless there is an “exceedingly persuasive justification” for doing so. Justice Ginsburg wrote the Court’s opinion in the Virginia case.
So, beyond Justice Ginsburg herself, few lawyers have done more to advance the cause of women’s equality than Nina Pillard — and few lawyers have been as successful in their efforts to do so. By confirming Pillard to the United States Court of Appeals for the District of Columbia Circuit, the Senate will ensure that the two women’s perspective as leading advocates for women’s justice will not be absent from the bench on the day the elderly Ginsburg retires.
That is, of course, if Pillard is confirmed. On the eve of her confirmation hearing, the influential Family Research Council warned of Pillard’s “militant feminism” and proclaimed that “America can’t afford to give a lifetime appointment to a radical ideologue!” Ed Whelan, a former Scalia clerk whose views often drive Republican senators’ questions at judicial confirmation hearings, fixated on an article Pillard published entitled “Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy” in order to argue that Pillard shows a “remarkable ambition to use the Constitution to impose and advance her own dogmatic belief.”
The article Whelan focuses on, which is all but certain to play a starring role in Senate Republican attacks on her record, explores three areas where Pillard belives America has fallen short in providing equal opportunity to women: “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.” (The second of these three problems has now largely been addressed by Obamacare). It also offers an aggressively sex-positive vision of women’s equality. As Pillard explains,
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.
In light of this frank discussion of female sexuality, it’s easy to see why groups like the Family Research Council — an organization that allegedly employed a senior policy staffer that referred to using birth control pills as “whoring around” — does not want Pillard to become a judge. If Whelan’s writings are any indication, however, Senate Republicans are likely to focus on the first part of Pillard’s article, which argues that many forms of abstinence-only education are unconstitutional.
As even the dissent conceded in Hibbs, 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 documents several examples of abstinence-only curriculums 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?
The crux 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.” It’s a clever argument, and hardly a surprising one given existing doctrines governing the Constitution’s guarantee of equal protection to women. And yet her opposition to teaching burgeoning young women that they need “financial support” and their husbands need “admiration” is likely to play a significant role in opposition to her nomination.
Ultimately, what’s at stake in the Pillard confirmation fight is whether a woman who devoted her career to advancing women’s equality in the workplace, in the classroom and in the bedroom is disqualified from the bench because of her fight for equality. The Senate will decide whether America celebrates women like Ginsburg and Pillard, or whether it will erect a glass ceiling over Pillard’s head because she’s devoted her life to smashing similar ceilings placed in the way of other women.