Bench Memos

D.C. Circuit Nominee Pillard’s False and Deceptive Testimony—Part 2

As a follow-up to my Part 1 post, I offer here some additional criticisms of Georgetown law professor Cornelia Pillard’s confirmation testimony. (Pillard’s hearing was brief. Four Republican senators each asked her questions for five minutes, and four Democratic senators tossed their softballs.)

1. When first asked (by Senator Mike Lee) about her “Our Other Reproductive Choices” law-review article, Pillard asserted:

That article was not seeking to restyle the law in any way, but actually—not the constitutional law. It was an article directed at policymakers and advocates, so asking for the law to be restyled was not at all a direction to judges but a direction to people who would be advocating for policies, whether they be corporate policies … [o]r legislative policies. [48:11-19]

I understand Pillard to be making two interrelated assertions: first, that the article “was not seeking to restyle … constitutional law,” and second, that it “was not at all a direction to judges.” Neither assertion is true.

Pillard’s argument in Part I of her article (outlined more fully here) that abstinence-only curricula violate constitutional equal-protection principles plainly seeks to restyle constitutional law. And, as I discuss in my previous post, Pillard is affirmatively making the case for federal judicial enforcement of her constitutional claim.

In Part II of her article, Pillard argues for “contraceptive equity,” for the “vital role” that “[s]ex equality law” should play “in assuring that women and men have access to reliable and affordable birth control.” While much of her argument is policy-oriented, Pillard is seeking to “restyle … constitutional law” here as well. For example, she argues that the “right to engage in nonprocreative sex, which the Supreme Court has protected from Griswold v. Connecticut through Lawrence v. Texas, can only be equally assured to women when they have ready access to safe and effective birth control” (OORC, pp. 975-976). She also argues that “the law of sex equality—constitutional as well as statutory—should prohibit discrimination based on pregnancy, childbirth, and related conditions” (OORC, p. 976 (emphasis added).) And she welcomes the overturning of a Supreme Court ruling (on a statutory question)—Geduldig v. Aiello (1974)—that she believes stands in the way of establishing “protection against discrimination based on reproductive distinctiveness … as a bedrock, constitutional protection that all official action must respect” (OORC, p. 973 (emphasis added).) So much for Pillard’s claim that her article “was not at all a direction to judges.”  

2. At the cost of repeating one of the points that Power Line’s Paul Mirengoff made in his critique of Pillard’s “astonishingly disingenuous” testimony:

As I pointed out in one of my background posts, when Pillard discussed the then-pending (and soon-to-be-argued) case of Hosanna-Tabor Evangelical Lutheran Church v. EEOC in 2011, she labeled the Lutheran Church’s position “a substantial threat to the American rule of law.” On the fundamental question of religious liberty at stake in that case, the Supreme Court ruled unanimously in favor of the church entity. So Pillard’s statement provides clear evidence that she is a left-wing ideologue.

Senator Grassley asked Pillard to explain her statement, and Senator Cruz asked her whether she still adheres to that view. In both instances, Pillard ducked answering the senator’s question. (See 39:11-40:12, 60:10-61:20.)

3. When Senator Grassley stated that Pillard has “criticized laws that grant conscience rights to pharmacists and health care providers ‘to refuse to facilitate abortions or even to fill prescriptions for contraceptives if they are personally opposed to such practices,’” Pillard responded, “That is not my view, in fact,” asserted that she had never written on the question of conscience rights, and said that she couldn’t address the matter because it might come before her as a judge. (38:8-39:6.) In fact, Grassley was quoting directly from one of Pillard’s writings in which she complained that “Legal restrictions on reproductive choice reach beyond the abortion procedure itself” and, in the passage Grassley quotes, cited laws granting such conscience rights as one example.

It may well be, I readily acknowledge, that Pillard didn’t recall her article. (The undue expediting of her hearing may well have prevented her from fully re-acquainting herself with her extensive record, just as it surely deprived the Senate Judiciary Committee of adequate time to review it.) But given both what she did write and her broader signs of pro-abortion extremism, there is zero reason to believe her when she claimed, “That is not my view, in fact.”


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