The astounding show of Republican recklessness that led to last month's government shutdown made one thing very clear. The new Republican Party -- the one ruled by the Tea Party -- isn't interested in making our government work. They want to break it.
Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America's economy wasn't enough, Republicans in Congress have set their sights on a new target: our justice system.
Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation's second-highest court behind the Supreme Court.
Pillard is one of President Obama's three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.
One of the most basic functions of the U.S. Senate is to provide "advice and consent" to the president on his nominations to executive agencies and to the federal courts. For most of our country's history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.
The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court -- a duty entrusted to him by the Constitution.
There's a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers' rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including "active" judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.
Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush's nominees to the court and eight of Ronald Reagan's. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.
To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans -- an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees' legal rights violates the free speech rights of the employers. No, really!
Unable to win national elections, Republicans are trying to hold on to what power they still have -- and that includes control of the powerful D.C. Circuit. Just like they couldn't accept that the Affordable Care Act was the law of the land, the Tea Party won't admit that Americans chose President Obama to be the one making picks to the federal courts.
The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.
Georgetown Law professor Nina Pillard, who has had a long and impressive career in law and public service, was approved today by the Senate Judiciary Committee to serve on the Court of Appeals for the District of Columbia. Her nomination now goes to the full Senate.
Scores of people and organizations who have worked with Professor Pillard or observed her work have written to the Senate in support of her nomination. Her supporters include:
Alumni of the Virginia Military Institute, which Pillard helped open to women:
VMI gauges its success as an institution by measuring the societal contributions of its alumni. Professor Pillard would rank high for her work to open VMI to female cadets. The case was initiated by the George H.W. Bush Administration and made its way to the Supreme Court during Professor Pillard’s tenure at the office of the Solicitor General of the United States. Professor Pillard drafted the five Supreme Court briefs for the United States and her winning arguments opened VMI’s doors for women who have become leaders in the armed forces, elsewhere in public service, and in the private sector.
Josiah Bunting III, superindent of the Virginia Military Institute when women were first admitted:
During the course of the United States v. Virginia case, I was impressed by Pillard’s fairness and rigor. She respected others’ strongly held views about male-only education at VMI, and I always felt that while we had opposing positions at the time, she comported herself with integrity and understanding — qualities that distinguish the best judges at all levels.
A bipartisan group of former attorneys of the Justice Department's Office of Legal Counsel, where Pillard served for two years:
We believe that Ms. Pillard has the skill, character, and objectivity that would make her a superlative judge on the D.C. Circuit. She was a respected leader and trusted advisor in OLC, valued for her fair-minded and meticulous approach to legal questions of all sorts. She is an exemplary nominee whom we wholeheartedly endorse.
Dozens of retired members of the armed forces:
Our experience advocating for the full participation of women in the armed forces has shown us that women, indeed, are suited for rigorous military training, service, and leadership. Our military and our nation benefit when both women and men are able to fully contribute to the defense of our country. We support Professor Pillard’s nomination because her accomplishments and credentials demonstrate that she has the qualifications to be a federal
appellate judge, and because her dedication to principles of equality demonstrates that she will be a great one. We urge you to give her a swift and fair hearing, and vote to approve her nomination.
In her legal advocacy and scholarship, Professor Pillard shows a clear understanding offundamental distinctions between the roles of courts and the political branches, and between law and culture, morality, politics or other important sources ofnorms that guide and constrain human behavior. Throughout her work, she has shown an appreciation ofnuance and respect for opposing viewpoints, grounded in a profound commitment to fair process and fidelity to the law.
In short, Professor Pillard is a talented advocate, a brilliant legal mind, a sensible and moderate problem solver, and a careful thinker who has devoted her career to public service and work for others. We wholeheartedly urge that you confirm her to the D.C. Circuit.
Prominent prosecutors and law enforcement officials:
We urge her confirmation because she is unquestionably eminently qualified, and is a sensible and fairminded lawyer and scholar who has worked extensively with law enforcement in her career. She brings to the bench sensitivity to the compelling need for effective and legitimate law enforcement in the modern era. She stands for fidelity to the law above all, and has demonstrated an unwavering commitment to the important, albeit limited, role of the courts in our federal system
I believe that Ms. Pillard has had invaluable work experience that makes her especially well-suited to the bench. While I do not know Ms. Pillard personally, others in the law enforcement community whom I know and respect are supporting her, and their views, combined with her superb experience and qualifications, convince me that she would make an excellent judge, especially on the DC Circuit, which requires someone with such experience and qualifications.
Based on our long and varied professional experience together, I know that Professor Pillard is exceptionally bright, a patient and unbiased listener, and a lawyer of great judgment and unquestioned integrity. We certainly do not agree on the merits of every issue, but Nina has always been fair, reasonable, and sensible in her judgments. She approaches faculty hiring, teaching and curriculum, and matters of faculty governance on their merits, without any ideological agenda--at times even against the tide of academic popularity to defend and respect different views and different types of people.
As we do not share academic specialties, I have not studied Professor Pillard's writings in full, but I know her to be a straight shooter when it comes to law and legal interpretation. She is a fair-minded thinker with enormous respect for the law and for the limited, and essential, role of the federal appellate judge-- qualities that make her well prepared to taken on the work of a D.C.
Circuit judge. I am confident that she would approach the judicial task of applying law to facts in a fair and meticulous manner.
Ms. Pillard’s record of achievement, and unanimous rating of Well-Qualified, the highest rating available, from the ABA’s Standing Committee on the Federal Judiciary, reflects her significant talents as an appellate litigator and scholar. Her legal career is remarkable for her accomplishments and the breadth and depth of her experience, and her reputation for fairmindedness, collegiality, and dedication to principles of equal justice is well founded.
Now that we’re well into President Obama’s fifth year in office, there are no prizes for guessing what the GOP’s response is to a diverse slate of nominees to the critical DC Circuit Court of Appeals.
Obstruct. Obstruct. Obstruct.
Even before they were nominated, Republican Senators were laying the groundwork to block anyone nominated to the circuit. Now that President Obama has nominated three unquestionably qualified jurists with broad support from across the ideological spectrum…Republican leaders are still intent on denying them simple yes-or-no votes.
We’ve created a simple graphic to share on Facebook to let Republicans know you’re watching how they treat this diverse set of nominees. Click here to share.
Republicans on the Senate Judiciary Committee spent yesterday’s confirmation hearing on D.C. Circuit Court of Appeals nominee Nina Pillard harping on two points: first, that they think the D.C. Circuit doesn’t need its three vacancies filled, and second, that they think Pillard’s arguments as an academic mean she would disregard the law as a judge.
As it happens, when George W. Bush was the one nominating federal judges, the very same senators held the exact opposite view on both of these issues.
As People For the American Way has extensively shown, the argument that the D.C. Circuit doesn’t need judges holds no water – in fact, Bush nominees Thomas Griffith and John Roberts (now Chief Justice) were confirmed to the D.C. Circuit when each active judge’s caseload was significantly lower than it is today.
And Republican attacks on Pillard’s academic writings also directly contradict their previous statements on Bush nominees with academic records. As Pillard noted in her hearing, "Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit."
Just a few years ago, Republican senators agreed. On the nomination of Tenth Circuit judge Michael McConnell, who took a number of far-right stands as an academic, including disagreeing with a Supreme Court decision declaring that a university ban on interracial dating constituted racial discrimination, Utah Sen. Orrin Hatch said, “The diversity of backgrounds and points of view are often the stitches holding together the fabric of our freedoms.”
“Surely, we can’t vote for or against a nominee on whether they agree with us on any number of a host of moral and religious issues, ” Alabama Sen. Jeff Sessions said of Eleventh Circuit nominee William Pryor, a far-right culture warrior who was outspoken in opposition to gay rights, women’s rights and the separation of church and state.
Then-Sen. Jim Demint defended D.C. Circuit Judge Janice Rogers Brown, one of the most outspoken conservative ideologues on the federal bench today, by saying, “A person with strong beliefs and personal convictions should not be barred from being a judge. In fact, I would rather have an honest liberal serve as a judge than one who has been neutered by fear of public opinion.”
And before the Senate confirmed Arkansas District Court Judge J. Leon Holmes, who used Todd Akin’s line about pregnancy from rape before Todd Akin did, Hatch told concerned colleagues, “This man is a very religious man who has made it more than clear that he will abide by the law even when he differs with it.”
These Bush nominees held positions that were clearly far out of the mainstream, yet Senate Republicans demanded and got yes-or-no confirmation votes on them, helping Bush to shift the federal judiciary far to the right.
What some Judiciary Committee Republicans objected to at yesterday’s hearings is what they apparently see as Pillard’s excessive support for women’s equality, both as an attorney and an academic. Pillard won the Supreme Court case opening the Virginia Military Institute to women and worked with Bush administration officials to successfully defend the Family and Medical Leave Act. She has strongly defended reproductive rights and criticized abstinence-only education that sends different messages to boys and girls. It’s this record that her Republican opponents have distorted beyond recognition.
By any measure, Pillard is well within the mainstream, and has made it very clear that she understands that the role of a judge is to apply existing law regardless of one’s personal views. But while Senate Republicans made plenty of excuses for Bush nominees who were far outside the mainstream, they are accusing Pillard of being just too much of a women's rights supporter to fairly apply the law.