Cornelia Pillard’s disingenuous testimony — evading Senators’ questions

I’ve written below about some of the deception in the testimony today of Cornelia Pillard, President Obama’s nominee to serve on the D.C. Circuit Court of Appeals. The pattern continued as the nominee answered questions by Republican Senators about her past positions.

Because Pillard has never been a judge, the questions necessarily focused on her writings as a law professor and, to a lesser extent, as an advocate in legal briefs. Senators may well have been hampered in such questioning by the fact that the hearing occurred within around two months of the nomination. Pillard has written voluminously, and it’s doubtful that Senators had the time needed to find, digest, and formulate questions about her full body of work.

Most Republican judicial nominees have had to wait much longer for their hearings. For example, if memory serves, John Roberts had to wait about ten times as long when he was nominated for the D.C. Circuit. But President Obama needs troops on the D.C. Circuit, which is one of the few entities that constrains his power to rule through executive fiat.

Fortunately, the writings of Pillard that have been uncovered gave rise to interesting lines of questioning. Unfortunately, Pillard’s answers were highly evasive and/or lacking in candor.

Only four Republican Senators out of eight on the Committee asked questions today. Ranking Member Grassley (and later Sen. Cruz) inquired about a statement Pillard made regarding Hosanna-Tabor Evangelical Lutheran Church v. EEOC. In that case, the Supreme Court, by a vote of 9-0, found that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches under the anti-employment discrimi­nation laws, because churches and other religious groups must be free to choose their leaders without government interference.

Prior to the decision, Pillard wrote that the position of the defendant church represents “a substantial threat to the American rule of law.” This statement was the focus of questions by Grassley and Cruz.

Pillard tried to side-step the inquiry by confessing that she is an imperfect predictor of how the Supreme Court will rule (she was referring to a statement she had also made that “the big news will be if the Court decides [the case] for the Church”). This was a cynical evasion.

The problem is not Pillard’s failure to predict how the Court would rule; the problem was her radical position that the church’s invocation of its First Amendment rights substantially threatens the rule of law. Pillard was unwilling to defend this position, so she dodged the question.

The significance of the 9-0 vote in favor of the church is not Pillard’s failure to anticipate it. The significance lies in the fact that she took a position too radical for any of the Court’s liberals to adopt. In fact, according to Cruz, Justice Kagan described the government’s position in the case, which Pillard supported, as “amazing.”

Pillard did no better with a question from Senator Lee about her argument that anti-abortion protesters are comparable to the members of the Ku Klux Klan who were the subject of the anti-KKK post-civil war statute. Pillard made this argument in the context of litigation trying to use that statute against anti-abortion protesters.

Pillard testified today that the comparison is “not at all fair.” She explained that she had been forced to rely the anti-Klan law because there was nothing else on the books with which to go after militant anti-abortion protesters (Pillard hoped to use RICO, but the Supreme Court had shot theory that down). Pillard assured Sen. Lee that, because Congress has since passed legislation to deal with such protesters, there is no longer a need to use the anti-Klan law.

But this isn’t very reassuring. The absence of better argument doesn’t justify making an irresponsible, inflammatory, and indefensible (by Pillard’s own admission) comparison of anti-abortion protestors to KKK members, who regularly engaged in practices such as lynching. What indefensible arguments will Pillard push the next time there is no better way to pursue her ideological agenda?

Sen. Cruz questioned Pillard about her equal protection critique of abstinence-only sex education, which I discussed here. Pillard testified that she has no objection to abstinence-only sex education unless it involves “sexual stereotyping.”

This provides little comfort. Pillard plainly believes that judges have the power to review sex education courses implemented at the local level to determine whether they violate her feminist vision of what constitutes impermissible stereotyping. I agree with Ed Whelan that “anyone who imagines that federal judges should be applying these standards to decide whether a sex-education curriculum (both on paper and as taught) is constitutionally permissible shouldn’t be trusted with judicial power.”

Finally, Sen. Flake questioned Pillard about her “transnationalism” referred to in my earlier report. He asked her about a statement in which, apparently, she indicated that international law provides a promising source of new rights for U.S. citizens, now that recognized domestic sources of such rights may be largely exhausted.

Pillard said she doesn’t agree with this view. She testified that she merely trying to explain to a Swiss audience the difference between our system and the system to which Europeans are accustomed. Specifically, she was trying to explain that we have a federal system.

I don’t have the statement that Sen. Flake was referring to, and thus cannot yet evaluate the plausibility of Pillard’s explanation of it. I can say, however, that Pillard is a less than ideal candidate to be explaining federalism to foreigners or anyone else. For she views “the federalism impulse” as a “sort of demonization of government” and an “effort to impede the ability of government to govern.”

I left the hearing room believing (1) that the long-time acquaintance of Pillard who told Ed Whelan that if confirmed Pillard will be “the most left-wing judge in the history of the Republic” is probably right and (2) that Pillard is a quite a good actress.

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