Cornelia Pillard’s disingenuous testimony to Congress — Ed Whelan’s take

Cornelia Pillard is President Obama’s left-wing, radical feminist nominee for the United States Court of Appeals for the District of Columbia. I wrote about Pillard’s radicalism here. I wrote about her confirmation hearing here and here. Her testimony struck me as astonishingly disingenuous.

Ed Whelan has taken an in-depth look at Pillard’s testimony about whether equal-protection considerations render abstinence-only sex education in public schools unconstitutional and, in particular, her testimony about her writings on the subject.

The key testimony came in response to Sen. Ted Cruz’s question as to whether, in one of her law review articles, Pillard contended “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 down a State or local government’s decision to teach abstinence-only.”

This position would brand Pillard as far too radical to be trusted with judicial power. But Pillard denied advocating it. Her answer to the question was, “No, Senator Cruz.”

But Ed Whelan shows that Pillard wasn’t honest on this point:

Pillard asserts—falsely—that her article “was very explicit in saying I do not see any constitutional objection, justiciable or otherwise, to abstinence-only education that does not rely on and promulgate sex role stereotypes.” In fact, what Pillard says in her article is only that an “abstinence message” (emphasis added) can be part of “egalitarian sex education” if it “eschew[s] sex-based double standards.” (She is agnostic on the question whether such an “abstinence message” should be included). There is, of course, a fundamental difference between an abstinence-only sex-education program and a “comprehensive” sex-education program that includes an abstinence message.

Pillard also misled the committee by trying to give the false impression that her article doesn’t contemplate federal judicial imposition of her standards of egalitarian sex education. In fact, as Ed demonstrates, Pillard advocated judicial enforcement.

To be sure, Pillard discussed the issue of whether litigants have standing to challenge policies that inflict purely “stigmatic harms” (which she believes stem from the “sexual stereotyping” allegedly associated with abstinence-only sex education). But Pillard indicated that, in her view, such standing exists.

Furthermore, Pillard argued that even if this is not the case, the harm from abstinence-only sex education isn’t purely stigmatic. Thus, any possible restrictions on standing for merely stigmatic harms are no barrier to judicial enforcement of her radical position on the merits.

Pillard concluded in her article as follows:

[T]he conduct-shaping purpose of sex education curricula makes them vulnerable to equal protection challenge [i.e., subject to judicial invalidation] even if communicating retrogressive sex roles in traditional academic classes might not be.

Plainly, then, and contrary to her testimony, Pillard wasn’t just an “academic” auditioning “the argument that one would make” if one were trying to persuade a court to adjudicate the constitutionality of abstinence-only sex education. Pillard was endorsing that argument.

As Ed concludes:

Nothing in Pillard’s article signals any separation-of-power or federalism concerns about whether federal judges should be applying her vague and intrusive standards of “egalitarian sex education” to decide whether a sex-education curriculum is constitutionally permissible. No one who imagines that that is a proper role for federal judges—and no one who seeks to use the Constitution to impose and advance her own dogmatic beliefs on a matter that clearly belongs, within very broad bounds, to the democratic processes—should be trusted with judicial power. Pillard’s false testimony on this matter ought to add even more heavily to the case against her confirmation.