Bench Memos

D.C. Circuit Nominee Pillard’s False and Deceptive Testimony—Part 1

The Senate Judiciary Committee’s vote on President Obama’s nomination of left-wing Georgetown law professor Cornelia Pillard to a seat on the D.C. Circuit is scheduled for next week (though, consistent with the Committee’s usual practices, the vote will presumably be held over until the following week). As I’ve previously noted, Power Line’s Paul Mirengoff, who attended Pillard’s unjustifiably expedited hearing, wrote two excellent same-day posts (here and here) discussing Pillard’s “astonishingly disingenuous” testimony. I’ve now reviewed Pillard’s hearing transcript (not available online, so far as I know) and, in this post and one or two others, will offer some additional criticisms.

In my pre-hearing background posts on Pillard, I outlined how her equal-protection argument against abstinence-only sex education in public schools—in Part I of her “Our Other Reproductive Choices” article—would have federal judges applying hopelessly vague standards of “egalitarian sex education” and would subject the sex-education curricula of public schools to federal judicial micromanagement. I also showed how her argument is replete with illogic and with an ideologue’s dogmatic but dubious vision of reality.

At her hearing, Senator Ted Cruz quoted the passage from Pillard’s article in which she wrote that her “equal protection critique of abstinence-only criteria is strengthened and rendered more amenable to judicial resolution by the fact that sex education classes are designed not only to expose students to ideas, but also to shape student behavior.” He then asked Pillard whether “you were arguing that if a State decides to teach abstinence-only, that that decision by State and local officials in your judgment may well be unconstitutional and it is an appropriate role for a Federal court to strike down a State or local government’s decision to teach abstinence-only” (58:5-10). Pillard’s flat—and brazenly false—answer: “No, Senator Cruz.” (58:11)

Pillard makes three gambits in her more extended response. First—and most amusingly given her usual hypersensitive hostility to anything that might be construed as a sex stereotype—she invokes her own status as a mother:

[L]et me say first I am a mother. I have two teenage children, one boy and one girl. And if my children are being taught in sex education, I want both my children to be taught to say no, not just my daughter. I want my son to be taught that, too. [58:11-16]

Why not her usual sex-neutral jargon—i.e., “I am a parent”? It would seem that in order to advance her own confirmation prospects Pillard is happy to play on the sex stereotype that mothers care more about having their sons “say no” than fathers do.

Second, Pillard asserts—falsely—that her article “was very explicit in saying I do not see any constitutional objection, justiciable or otherwise, to abstinence-only education that does not rely on and promulgate sex role stereotypes” (58:17-20). In fact, what Pillard says in her article is only that an “abstinence message” (emphasis added) can be part of “egalitarian sex education” if it “eschew[s] sex-based double standards.” (OORC, p. 962.) (She is agnostic on the question whether such an “abstinence message” should be included. (OORC, p. 962 n. 63.) There is, of course, a fundamental difference between an abstinence-only sex-education program and a “comprehensive” sex-education program that includes an abstinence message.

Third, Pillard tries to give the impression that her article doesn’t contemplate federal judicial imposition of her standards of egalitarian sex education:

[W]hen I talked in my article about what would make something more amenable to judicial review, it was because just prior to that I had said I do not think there is any settled law making any of this reachable by courts. And as we academics do, I said, you know, the argument that one would make to make it amenable by courts is the one you quoted. [59:4-10]

Pillard’s actual article refutes her testimony. To be sure, because hers is a constitutional argument, Pillard’s equal-protection argument against abstinence-only curricula applies against all relevant governmental actors (all of whom are subject to constitutional limits) and does not depend exclusively on federal judicial enforcement. But Pillard is affirmatively making the case for federal judicial enforcement.

To make the matter as clear as possible (not an easy matter, given some of Pillard’s convoluted prose), let me provide some broader context.

In the paragraphs that precede the passage that Senator Cruz quotes, Pillard first argues vigorously in support of the proposition that purely stigmatic harms (i.e., “ideological and cultural ideas even apart from concrete acts of denial or exclusion”) render sex stereotypes unconstitutional. (OORC, pp. 956-958.) She observes that “standing to challenge policies that communicate racial inferiority has been broadly construed.” (OORC, p. 958.)

In context, it is clear that Pillard believes that standing to challenge policies that inflict stigmatic harm from sex stereotypes should likewise be broadly construed. She raises, though, the possibility that there might be a lack of standing for stigmatic injury and briefly pivots to the observation that, even in the absence of standing in court, her equal-protection argument would mean that abstinence-only curricula are unconstitutional. Thus, “In the final analysis, equality norms should require the adoption of a counter-stereotyping approach to sex education even if those norms are not always judicially enforceable.” (OORC, p. 958.)

The sentence that Senator Cruz quotes leads off the next paragraph:

The equal protection critique of abstinence-only criteria is strengthened and rendered more amenable to judicial resolution by the fact that sex education classes are designed not only to expose students to ideas, but also to shape student behavior.

Pillard is arguing that the harm from abstinence-only sex education isn’t purely stigmatic and thus should escape any possible restrictions on standing for stigmatic harms. Two sentences later, she puts the point more strongly: “[T]he conduct-shaping purpose of sex education curricula makes them vulnerable to equal protection challenge [i.e., subject to judicial invalidation] even if communicating retrogressive sex roles in traditional academic classes might not be.” (OORC, p. 958 (emphasis added).)

In short, contrary to her testimony, Pillard wasn’t playing the disinterested academic and merely identifying “the argument that one would make to make [her equal-protection challenge] amenable” to judicial resolution. Rather, she was affirmatively advocating the argument.

Further, in the conclusion of her article, Pillard laments that “in the critical areas of teen sexuality and sex education, our culture, politics, and courts have yet to fully repudiate sex-based double standards” (emphasis added), and she says, in the very next clause (in the next sentence), that “[p]romulgation of stereotypes in sex education should be treated as unconstitutional.” (OORC, p. 988.)

Nothing in Pillard’s article signals any separation-of-power or federalism concerns about whether federal judges should be applying her vague and intrusive standards of “egalitarian sex education” to decide whether a sex-education curriculum is constitutionally permissible. No one who imagines that that is a proper role for federal judges—and no one who seeks to use the Constitution to impose and advance her own dogmatic beliefs on a matter that clearly belongs, within very broad bounds, to the democratic processes—should be trusted with judicial power. Pillard’s false testimony on this matter ought to add even more heavily to the case against her confirmation.


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