The Indefensible Filibuster of Nina Pillard


Senate Republicans have continued their blockade of nominations to the powerful D.C. Circuit Court of Appeals. On Tuesday, the GOP minority blocked a vote on the nomination of Cornelia ("Nina") Pillard to the D.C. Circuit. Fifty-six senators voted in favor of moving forward with the nomination. Pillard is typical of the circuit court judges the Republican minority has had a particular distaste for. First, she's not a white male. And second, she has utterly mainstream legal views that hardly meet the "extraordinary circumstances" the Senate allegedly requires to filibuster a judicial nominee.

On the first point, Jennifer Bendery of Huffington Post observes that the three women the GOP minority has now prevented from getting up-or-down votes are part of a trend:

Ten of the sidelined judicial nominees are women, two are openly gay and nine are minorities (seven are African American, one is Asian American and one is Native American). The lone executive nominee being blocked right now, Rep. Mel Watt (D-N.C.), is African American.

This is not to say that the fact Republicans are filibustering a disproportionate number of these nominees because of their race or gender. That they're nominees of a Democratic president was already damning enough evidence of their inability to carry out the law, in the GOP's opinion. Nonetheless, irrespective of their motivations, the result of Republican obstructionism is to make the federal courts less diverse than they should be.

Pillard's fall also showcases the unique nature of these systematic filibusters. The latest conservative pundit to embrace the asinine "Obama is trying to pack the Court" meme, Ramesh Ponnuru, contends that "President Barack Obama’s nominees are getting confirmed at a faster pace than Bush’s were at the same point in his presidency." It's not clear what time frame Ponnuru is talking about, but at the same point of his presidency Bush in fact had seen more nominees confirmed, both in terms of absolute numbers and percentage of nominees.

But the raw numbers understate the differences, because Obama (like Clinton) has tended to pre-compromise by selecting more moderate nominees. The kind of judges Bush and Obama are nominating are simply not comparable. Nominees like Pillard and Patricia Millett are not the liberal equivalent of radical Bush nominees like Janice Rogers Brown and Priscilla Owen. This asymmetry can be seen up to the Supreme Court level. Four of the six most conservative justices since 1937 (two of them appointed by George W. Bush) are currently serving on the Supreme Court, while the current Democratic appointees are not nearly as liberal as Warren Court stalwarts like William Brennan and Thurgood Marshall.

Senate Republicans can barely even by bothered to pretend that Pillard isn't a mainstream nominee, and the arguments they're using on behalf of the assertion are farcical:

Pillard’s nomination was easily the most controversial for conservatives in the Senate, who voiced concerns over her “radical” views connecting reproductive rights to gender equality as well as her history working on significant cases such as United States v. Virginia, which opened the Virginia Military Institute to women, and Nevada Department of Human Resources v. Hibbs, which successfully defended the Family and Medical Leave Act against a constitutional challenge.

It's hard to imagine evidence of "radicalism" being much more feeble. You don't exactly have to be Catharine MacKinnon to believe that states denying women the same educational opportunities as men violates the equal protection of the laws guaranteed by the 14th Amendment. Indeed, Pillard's position won at the Supreme Court 7-1. Similarly, arguing that the FMLA—which passed the Senate 71-27—was applicable against state employers is not exactly revolutionary. The Supreme Court agreed in a 6-3 opinion authored by noted left-wing fanatic William Rehnquist (who also voted with the majority in the VMI case.)

The evidence that Pillard is a radical, in other words, is that she worked to advance views about women's constitutional rights that have won the support of one of the most conservative Supreme Court justices of the last century. To call this argument "self-refuting" is putting it mildly. And Pillard is considered the most liberal of the D.C. Circuit nominees being filibustered.

But as with the "court-packing" nonsense, one doubts that even the senators making these silly arguments believe them. This isn't about stopping a particularly extreme nominee from being confirmed—the Republican simply opposes Obama making any further appointments to the D.C. Circuit in principle. Should they persist, Senate Democrats need to blow up the filibuster and allow presidents of both parties to staff the judicial branch.

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