CHARLOTTESVILLE, Va -- . Cornelia “Nina” Pillard is President Barack Obama’s pick for one of three vacant seats on the federal appeals court for the District of Columbia Circuit. She is a well-respected professor at Georgetown Law School; co-director of its Supreme Court Institute; a former lawyer at the ACLU, the NAACP Legal Defense Fund, and the Justice Department; and a successful Supreme Court litigator.
She is also a “feminist.”
A “feminist” insofar as she has spent part of her career advocating for women’s equality (including a successful brief challenging the men-only admissions policy at the Virginia Military Institute, and a successful challenge to gender-biased family leave policies). Pillard’s “radical feminism” appears largely to take the form of seeking equality for women, which would certainly be a disqualifying feature of her advocacy work. If it were 1854.
Happily for Senate Republicans, when it comes to women’s rights every year is 1854 and Pillard’s confirmation hearing this week before the Senate Judiciary Committee thus unspooled along depressingly predictable lines: a meaningless word salad of meaningless words including “judicial activism” (used wrongly to mean “I hate her”) and “court packing” (used wrongly to mean “filling existing vacancies”) and “out of the mainstream” (used wrongly to mean “pro-women”).
Like all academics and advocates, Pillard has said and written things she should be asked to explain. But the hearing and the media attacks on her have featured unnamed academics anonymously condemning her as being like (extremely liberal) Appeals Court Judge Stephen Reinhardt “in a skirt but less moderate.” Then there was Iowa Sen. Chuck Grassley’s bizarre reading of statements by nameless, faceless sitting D.C. Circuit judges, who told the Republican senator from Iowa that despite the three vacancies, no more judges are needed at the court.
(To counteract the testimony of the Mystery Judges, Sen. Richard Blumenthal (D-Conn.), read statements from name-ful, face-ful judges — including Laurence Silberman, Douglas Ginsburg and Chief Justice John Roberts — indicating that the judgeships are very much needed).
This episode has some of the same-old, same-old quality that has led most Americans to tune out the judicial confirmation wars as partisan and predictable on both sides. But to do so is to misunderstand the nature and basis of right-wing attacks on Pillard. She isn’t being condemned for what most Americans view as radical feminist activism. She’s being shellacked for academic and litigation work devoted to pushing for basic women’s equality. These attacks are reminiscent of nothing so much as the vitriol and contempt directed at women like Sandra Fluke, who was an advocate of access to birth control — not a radical proposition — and Lilly Ledbetter, who has pushed for equal pay. These are not wackadoo “feminist” ideologies. These are not castrating, mommy-hating, end-of-men plans for world dominion. This is the stuff basic gender fairness is built on.
The most vicious attacks on Pillard were predicated on simple misrepresentations. As Jane Hamsher pointed out this week, a quote widely attributed to Pillard’s 2012 article on law and motherhood — co-written with Naomi Mezey — says she once claimed that celebrating motherhood creates a “self-fulfilling cycle of discrimination.” Actually that phrase was written by then Chief Justice William Rehnquist, and quoted as such by Pillard, from Rehnquist’s opinion creating gender-parity in family leave policies. Rehnquist was, it should be noted, many things. “Radical feminist” was probably not one of them.
In the same 2012 article, urging that women should have access to contraception, Pillard and Mezey argued that “many employers assume that to be a mother is to be a primary caregiver with correspondingly less job commitment than a man, who is presumed to be an unencumbered ‘ideal worker.’ If impaired access to contraceptives hinders women’s ability to exercise choice about when and whether to have children, it also reinforces broader patterns of discrimination against women as a class of presumptive breeders rather than reliable breadwinners and citizens.”
As Sergio Munoz explains on mediamatters.org, you can certainly smear this argument as militant feminism, which the Family Research Council does. Or you can see it the same way nine out of 10 Americans do: There is nothing “militant” or “feminist” about giving women access to birth control. There hasn’t been for a long, long time. And if equal access to birth control helps employers treat women and men fairly and equally, that is not a “militant” or “feminist” outcome, it is simply “fair.”
As the hearing meandered on, GOP senators also questioned Pillard on abortion, access to contraception, and sex education. The “scandalous” sex education argument she has advanced – which consumed much of yesterday’s hearing — involved a 2007 law review article entitled “Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access and Work Family Policy.” In that piece (again centered on achieving equality), Pillard wrote that “obligatory education permeated with discriminatory content” raises constitutional equal protection issues. She was bothered by the double standard in many abstinence only curricula that prescribes “chastity and maternity for women while assuming lustfulness and autonomy for men.” In short: She argued that if the state is teaching boys and girls sex education, it should kindly teach them that it’s OK for boys and girls to want the same things. Curricula that teach young people that women need “financial support,” whereas men need “domestic support” and “admiration” would seem to raise constitutional problems.
Of course, by the time she got to her hearing, the charge was that Pillard thinks all teaching of abstinence education is unconstitutional. Ted Cruz, R-Texas, put it this way: “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 (it) down.” Pillard clarified that she wasn’t deeming the teaching of sex ed unconstitutional; merely a curriculum that teaches that girls have wildly different chastity-based obligations than do boys.
Which brings us, of course, to abortion, which is where we always arrive, no matter where we begin. The focus here is on Pillard’s language, again in this case the academic claim that abortion and contraception must “free women from historically routine conscription into maternity.” Beyond that statement, the principal affront appears to lie in the fact that she has taken the position — long espoused by Justice Ruth Bader Ginsburg and many, many legal scholars — that there is an equal protection argument for giving women the right to choose, and not simply a privacy right. This is not a radical or feminist argument. It’s of a piece with Pillard’s general view that in order to fully achieve parity with men, women need to be able to decide if, when, and how to have babies. Her language of “breeding” or “conscription” may be off-putting. That’s probably her point. But the idea that women, not the government, should have the same power as men to organize their economic lives by controlling their reproductive lives, is still considered “radical feminism” only in places like Saudi Arabia.
Ian Millhiser reminds us this week that Justice Ginsburg regretfully observed in 2011 that she herself could probably not be confirmed today, based on her career as a pioneer of women’s rights litigation at ACLU. The same folks who object to Nina Pillard would doubtless say she never should have been. But that raises the question of where would the rest of us be without Ruth Bader Ginsburg’s extraordinary efforts, both off the bench and on it, to enshrine a legal architecture in which women are not treated as less serious, less employable, and less free, than men? Without Ginsburg and Pillard and other women who followed them, women would not enjoy anything like the gender parity we have today. Not at work, not in our benefits, and not in our homes.
Instead of cherry picking Pillard’s 2012 law review article about motherhood for gotchas, one could wish the Republicans on the Judiciary Committee had just read it for its fundamental argument, which concludes that “(it) has only become clearer in recent decades how the roles of women and men at home, and in our collective cultural assumptions about those roles, will have to undergo a major change before the freedom and equality that so many kinds of advocates have long envisioned can become real.”
A good place to start to change cultural assumptions about the “radical” nature of equality, parity, and respect for women might well be among Republican men on the Senate Judiciary Committee.
Dahlia Lithwick writes about the courts and the law for Slate.