At about 1 a.m. last night, the Senate voted 51–44 to approve Cornelia Pillard to the D.C. Circuit Court of Appeals. The vote occurred in the middle of the night because the GOP, asserting its minority rights that the Democratic majority has significantly curtailed, is holding a “talkathon” to drag out the process of voting on the nominations before the Senate. This really bothered Rachel Maddow:
Unfortunately for Ms. “Borders on Obsessed with the Facts” Maddow, Nina Pillard is, objectively, quite far from a “noncontroversial” nominee. She’s probably the most extreme of President Obama’s judicial nominees this year, and has attracted plenty of controversy among the circles that debate D.C. Circuit Court candidates – which is supposed to include the U.S. Senate. Many of the other nominees were indeed not too scandalous, though I’m not sure you’ll have many other chances to see an MSNBC host disparage the who’s nominated to the Equal Employment Opportunity Commission.
But Pillard is just the sort of person that does deserve a great deal of scrutiny from the Senate, and now just needs a party-line bare-majority vote, thanks to Majority Leader Harry Reid’s unilateral change to the chamber’s rules in November. Most Americans may not know just how far out of the mainstream her views are, but here’s a simple piece of evidence: In 2011, she commented at a Georgetown University event on a case before the Supreme Court, Hosanna-Tabor vs. EEOC, in which a Lutheran church was defending churches’ right to be exempt from normal employment-discrimination law. Pillard said the following, ““[The notion that] the Constitution requires deference to Church decisions about who qualifies as a minister . . . seems like a real stretch. . . . The Lutheran Church’s position here is a substantial threat to the American rule of law — it would effectively empower any religion to create its own autonomous Vatican City-style regime. . . . It is hard to see the Supreme Court deciding that that is what the First Amendment law requires.”
The Supreme Court decided in favor of the church’s protections 9–0. That is, not one of the four (or so) liberal justices on the Supreme Court agreed with a position that Pillard thinks is “hard to see” as anything but the right reading of the First Amendment. This wasn’t a bad prediction, as she disingenuously told the Senate Judiciary Committee — this was her view of the law.
Her legal views, which should worry not just conservatives people with perfectly moderate views too, have come out in more formal ways: In a 2006 law-review article, Pillard argued that the Constitution’s guarantee of equal protection meant that courts should consider whether sex-education classes meet a certain standard of “egalitarian” values. She worries that many programs illegally promote retrograde understandings about gender and sex roles, and may not “affirm the value of sexual pleasure for females as well as males” in a way that satisfies equal-protection law (abstinence-only education, she contends, intrinsically involves stereotyping the sexes). When questioned about this by Republicans on the Senate Judiciary Committee, Pillard denied that she’d done so, despite the clear argument she advances — that it would be within the proper role of courts to examine existing sex-ed curricula and determine whether they promote inadequately equal understandings of sexuality. As NR’s editors wrote in September, “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.” Such views, along with her longstanding and well-established desire to yoke American courts to “legal transnationalism” and her dishonesty before the Senate Judiciary Committee, seem to call into question, if not invalidate, her worthiness as a federal judge.
But in Harry Reid’s Senate, last night’s 51 votes will have her seated on the second most important court in the nation, which happens to be underworked and in no need of new judges.
Maddow was right that many of the nominees under consideration this week aren’t themselves controversial — but some of them are, and deserve thorough consideration, if not rejection, which is why the minority is entrusted with the power to force that process. Or rather, was. This week’s extended debateis one way to underscore that the minority now has substantially diminished power to ensure that a nominee such as Pillard is properly examined.
And those uncontroversial nominees, by the way, are being pushed through in a controversial way — Reid is pushing nominees to bipartisan regulatory boards (such as the EEOC, but also a host of others) without waiting for a matching Republican nominee to be put forth by Senate Republicans, as is customary in the Senate.