Questioning Pillard

by The Editors

President Obama nominated three candidates for the D.C. Circuit Court of Appeals this summer, and Democrats on the Senate Judiciary Committee have already hurried two of them through perfunctory hearings. One of them, law professor Cornelia Pillard, comes up for a vote before the committee on Thursday. The D.C. Circuit is not in desperate need of judges; just the opposite, in fact — it is underworked. The number of cases filed per active judge last year was almost the same as it was in 2005, when Democrats were bleating that there was no reason to fill the seats with Bush appointees. The only upside to a rushed confirmation process would be faster rubber stamps for this president’s ambitious regulatory agenda.

Pillard epitomizes why the president’s nominees demand thorough examination, because her relative candor in the past has revealed just how unsuited she is for a judgeship (and forced her to feed obviously dishonest answers to senators’ questions). The other two Obama nominees are not necessarily any more reasonable, but without sufficient deliberation we will never know.

The most controversial aspect of her oeuvre uncovered thus far is a 2007 law-review article in which she encourages federal judges to apply equal-protection standards to “reproductive choices.” Applying equal protection to push feminist goals — abortion access, chiefly — has long been a goal of the left wing of our legal system (Justice Ginsburg is a fan). But Pillard believes it should go much further: Equal protection demands that sex-education programs be thoroughly “egalitarian” and devoid of sex-based “stereotyping.”

That alone would be a perverse understanding of equal protection and the proper ambit of the courts, clearly impinging on the rights of state and local governments. Further, she distorts beyond recognition what her standards imply: She argues that any program promoting abstinence as its main message inherently stereotypes the sexes, and that properly egalitarian education, among other things, must “affirm the value of sexual pleasure for females as well as males.” Under questioning by Republican members of the Judiciary Committee, Pillard denied the details of her argument and even contended that she didn’t think it appropriate for federal courts to invalidate abstinence-only programs. But in her article she affirmatively argues for federal judicial enforcement of her vague standards for “egalitarian” sex educations.

Her application of equal protection asks judges to police curricula not only for excessive stereotyping but also for insufficient affirmation of what amounts to feminist dogma. Regardless, someone who believes the judiciary can and should contort constitutional concepts — to say nothing of ordinary words — to advance plainly ideological preferences should never be entrusted with a federal judgeship.

Perhaps the single clearest indicator of the extremity of Pillard’s views is her suggestion, prior to the Supreme Court’s 9–0 decision in Hosanna-Tabor v. EEOC that the Lutheran Church had a broad religious-liberty right to select its ministers, that the church’s argument was “a substantial threat to the rule of law” and unlikely to be upheld. When asked by the Judiciary Committee, she shrugged off this revelation of a radical view on religious freedom by sheepishly saying she had just wrongly predicted what the court would do, when she had also — wrongly and dangerously — recommended what the court should do.

In a written questionnaire, Pillard dodged a question about the confidentiality of legal memos pertaining to Miguel Estrada, a controversial Bush judicial nominee who was filibustered by Senate Democrats, proclaiming she would have endorsed him. She earnestly informed the Judiciary Committee that she believes her law-school contemporary and Harvard Law Review colleague “was well qualified to serve on the D.C. Circuit and should have been confirmed.” She’s right, but twelve years too late and devoid of any sincerity.

Pillard is a skilled written and oral advocate, and her testimony so far has done well to obscure her damning record. Every time she is asked to defend her work, the stack of hopelessly deceptive answers grows. Cross-examination of nominees should have reasonable limits, but Pillard’s casuistry would inevitably degrade under more examination — and so might that of other Obama nominees, if time is taken to consider their less public beliefs.

The need for a rapidly filled D.C. Circuit is about as pressing as the equal-protection problems presented by sex-education curricula. We hope Democrats and Republicans in the Senate will recognize as much.