Federal Courts and Nominations

Nina Pillard Nomination for D.C. Circuit Advances

by Todd Ruger


The Senate Judiciary Committee today approved President Barack Obama’s second—and the most controversial—nomination to the U.S. Court of Appeals for the D.C. Circuit.


The committee voted 10-8 along party lines to send the nomination of Georgetown law professor Cornelia “Nina” Pillard to the full Senate, which is already primed for a showdown over the administration’s two other nominees to the D.C. Circuit, often considered the country’s most important court second to the U.S. Supreme Court.


Before today’s vote, Republicans, led by ranking member Senator Chuck Grassley (R-Iowa), criticized Pillard’s “controversial and extreme views on a number of topics,” particularly writings on reproductive rights. Grassley repeated the Republican argument that the D.C. Circuit’s workload does not justify filling the three vacancies on the 11-judge court.


Democrats spent the hearing defending Pillard’s qualifications. She was a former Justice Department lawyer serving in the solicitor general’s office and the Office of Legal Counsel and argued before the Supreme Court nine times. Pillard has been a law professor since 1997.


Senator Dianne Feinstein (D-Calif.) said Pillard has handled some of the most important cases on equality for women in recent memory, such as upholding Family and Medical Leave Act and a government brief that struck down exclusion of women from Virginia Military Institute.


“I don’t agree, as most of us don’t, with every single position Ms. Pillard has taken,” Feinstein said. “But the question is: Is she qualified? Is she credentialed? I think there’s no doubt about that. … I think she’s within the mainstream of American thinking and I believe she’ll be able to apply the law fairly and impartially.”


Grassley said he had concerns over Pillard’s judicial philosophy and views as international law, federalism, but mostly reproductive rights. Grassley described Pillard as “extremely critical of the pro-life movement.”


“But as I review her legal career, I’m concerned by the instances where she has really stretched the limits of thoughtful reasoning,” Grassley said. “In my view, at times she appears to advance her own extreme policy preferences.”


Senator Orrin Hatch (R-Utah) said he believes Pillard is an effective attorney, and he has tried to show deference to qualified judicial nominees from Democrat presidents. But he said Pillard’s record “demonstrates the kind of political activist judicial philosophy that I believe actually fails this test.”


“Her writings in various areas including reproductive rights and the family do not simply take a liberal position, but adopt a rigid ideology that clearly drives not only her view of the law but even her understanding of social facts,” Hatch said.


Feinstein fired back. “I guess Republicans tend to believe the Democratic nominees who have a position on controversial issues cannot be fair judges,” Feinstein said. “And yet, when the reverse happens, they all believe activist Republicans can be a fair judge.”


“I voted for some of them, there’s no question about that, because I believe they can,” Feinstein said.


That type of back and forth about Pillard’s qualifications did not happen before the vote of the first D.C. Circuit nominee, Patricia Millett, who leads the U.S. Supreme Court practice at Akin Gump Strauss Hauer & Feld and is among the top ranks of appellate attorneys.


Critics of Millet’s nomination underscored that their votes had nothing to do with the qualifications. Yet all committee Republicans voted against approving the nomination.


And such a discussion is not expected at the committee vote of the third D.C. Circuit nominee to go through the process, U.S. District Judge Robert Wilkins, who breezed through his confirmation hearing.


Still, Republicans appear poised to try to block any nominations to the D.C. Circuit before confirmation votes in the full Senate. At Thursday’s vote, Grassley again accused Obama of wanting to increase the number of judges in order to determine the outcome of cases, something he said “can reasonably stated as packing the court.”


“Unfortunately, the justification for moving forward with additional D.C. Circuit nominees appears to be a desire and intent to pack the court in order to determine the outcome of cases this court hears,” Grassley said. “It is no secret that this is the President’s intent.”


Democrats have balked at this argument, saying that filling vacancies does not qualify as trying to pack the court. A Republican block on the nominees could once again cause Democrats to threaten a historic change to the Senate’s filibuster rules to allow for confirmation votes.


After Thursday’s vote, several liberal groups urged a full Senate review of the nominations. “The question is: what will moderate Republican Senators do next?” said Constitutional Accountability Center Vice President Judith Schaeffer.


“If they truly have the interest of the American people at heart, they will follow the lead of Senator John McCain, who has said each of the three pending nominees to the D.C. Circuit should get a yes-or-no vote on the Senate floor,” Schaeffer said. “Each of these nominees deserves no less.”


Alliance for Justice President Nan Aron said the American people have good reason to be fed up with Republican obstruction and delay.


“They demand and deserve courts that have enough judges to administer justice fairly and swiftly,” Aron said in a statement. “Americans are entitled to a swift yes-or-no vote by the full Senate on Nina Pillard and President Obama’s other judicial nominees.”

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