Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On the Nomination of Cornelia “Nina” Pillard

Here we are again.  For the third time this year, we are debating whether to end a Republican filibuster and allow a confirmation vote for a highly qualified woman to the D.C. Circuit.  In March, it was Caitlin Halligan.  Last month, it was Patricia Millett.  Today, it is Nina Pillard.  The qualifications of each of these nominees surpass those of many other attorneys confirmed to the Federal bench.  These three women have earned their way to the top of the legal profession and it appears that Senate Republicans are going to continue to launch filibuster after filibuster at these stellar nominees. 

Like Caitlin Halligan, and like Patricia Millett, I am confident that Nina Pillard would be confirmed if Republicans would stop filibustering and allow an up or down vote on her nomination.  If Republicans vote in lock step to continue their filibuster against Nina Pillard, Senate Republicans will have blocked three outstanding women in a row from being confirmed to what is considered the second highest court in our country.

Senate Republicans have an opportunity to make this right by voting to end the filibuster of Nina Pillard’s nomination today, and by voting on the nomination of Patricia Millett once the Majority Leader brings it again before the Senate as he said he intends to do.  Confirming these two highly qualified nominees is the right thing to do and it will make history--once these two extraordinary women are confirmed, the D.C. Circuit will be the first Federal appellate court in our country to have an equal number of women serving as judges as men.

Despite having filled nearly half of law school classrooms for the last 20 years, women are grossly underrepresented on our Federal courts.  What kind of message are Senate Republicans sending by refusing to even allow a vote on three of the most qualified female attorneys in the country?  We need women on our Federal courts.  A vote to end this filibuster is a vote in the historic direction of having our Federal appellate courts more accurately reflect the gender balance of the country. 

Nina Pillard is a stellar nominee.  She is an accomplished litigator whose work includes 9 Supreme Court oral arguments, and briefs in more than 25 Supreme Court cases.  She drafted the Federal government’s brief in United States v. Virginia, which after a 7-1 decision by the Supreme Court made history by opening the Virginia Military Institute’s doors to female students and expanded educational opportunity for women across the country.  Since then, hundreds of women have had the opportunity to attend VMI and go on to serve our country.  Josiah Bunting III, the Superintendent of VMI when female cadets were first integrated into the corps, has since called VMI’s transition to coeducation “one of its finest hours.”

Nina Pillard has not only stood up for equal opportunities for women, but for men as well.  In Nevada v. Hibbs, she successfully represented a male employee of the state of Nevada who was fired when he tried to take unpaid leave under the Family Medical Leave Act to care for his sick wife.  In a 6-3 opinion authored by then-Chief Justice William Rehnquist, the Supreme Court ruled for her client, recognizing that the law protects both men and women in their caregiving roles within the family.

Nina Pillard has also worked at the Department of Justice’s Office of Legal Counsel, an office that advises on the most complex constitutional issues facing the Executive Branch.  Prior to that service, she litigated civil rights cases at the NAACP Legal Defense & Educational Fund.  At Georgetown Law, my alma mater, Nina Pillard teaches advanced courses on constitutional law and civil procedure, and co-directs the law school’s prestigious Supreme Court Institute. 

She has earned the American Bar Association’s highest possible ranking – Unanimously Well Qualified – to serve as a federal appellate judge on the D.C. Circuit.  She also has significant bipartisan support.  Viet Dinh, the former Assistant Attorney General for the Office of Legal Policy under President George W. Bush, has written that:  “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…  Nina has always been fair, reasonable, and sensible in her judgments… 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 take on the work of a D.C. Federal Judge.”

Former FBI Director and Chief Judge of the Western District of Texas, William Sessions, has written that her “rare combination of experience, both defending and advising government officials, and representing individuals seeking to vindicate their rights, would be especially valuable in informing her responsibilities as a judge.”

Nina Pillard has also received letters of support from 30 former members of the U.S. armed forces, including 8 retired generals; 25 former Federal prosecutors and other law enforcement officials; 40 Supreme Court practitioners, including Laurence Tribe, Carter Phillips, and Neal Katyal, among others.  I ask unanimous consent to include a list of those letters of support for Ms. Pillard in the Record at the conclusion of my remarks.

Nina Pillard’s nomination does not rise to the level of an extraordinary circumstance, which was what the Gang of 14 decided should be the standard for filibustering nominees back in 2005.  According to a Senate Republican who still serves today, “Ideological attacks are not an ‘extraordinary circumstance.’  To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent.”  There is no reasonable interpretation of that definition in which one could find an extraordinary circumstance with Nina Pillard.  She has no character problem, no ethics problem, and most importantly, she has extraordinary qualifications.

Rather than debate the merits of President Obama’s well- qualified nominees to the D.C. Circuit, Senate Republicans have made clear that partisanship is more important to them than the Federal judiciary, the administration of justice, and the needs of the American people.  With the exception of Senators Lisa Murkowski and Susan Collins, every single Republican Senator voted to filibuster Patricia Millett’s nomination, arguing that we should not fill existing vacancies because suddenly they are concerned about the need for these existing judgeships.  We know that this is just a prextext for two reasons.  First, they had no such concerns about the unique caseload of the DC Circuit when a Republican was in the White House and nominating judges to the ninth, tenth and eleventh seats.  And second, if Republicans actually cared about the cost of hampering our government’s functions they would not have shut down our federal government, which cost billions of dollars and set back our recovering economy. 

In 2003, the Senate unanimously confirmed John Roberts by voice vote to be the ninth judge on the D.C. Circuit – at a time when its caseload was lower than it is today – and, in fact, his confirmation marked the lowest caseload level per judge on the D.C. Circuit in 20 years.  Not a single Senate Republican raised any concerns about whether the caseload warranted his confirmation, and during the Bush administration, they voted to fill four vacancies on the D.C. Circuit – giving the court a total of 11 judges in active service.  Today there are only eight judges on the court.  What has changed?  It is not the caseload – that has remained fairly constant over the past 10 years.  In fact, the cases pending per active judge are actually higher today than they were when President Bush’s nominees were confirmed to the D.C. Circuit.  The only thing that has changed is the party of the President nominating judges to the court. 

We also should not be comparing the D.C. Circuit’s caseload with the caseload of other circuits, as Republicans have recently done.  The D.C. Circuit is often understood to be the second most important court in the land because of the complex administrative law cases that it handles.  The court reviews complicated decisions and rulemakings of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11th.  So comparing the D.C. Circuit’s caseload to other circuits is a false comparison, and those who are attempting to make this comparison are not being fully forthcoming with the American public.

The D.C. Circuit should be operating at full strength as it was when President Bush held office.  There are currently three vacancies and President Obama has fulfilled his constitutional role by nominating three eminently qualified nominees to fill these seats.  Patricia Millett, Nina Pillard, and Robert Wilkins would fill the ninth, tenth, and eleventh seats on the D.C. Circuit.  These are the same seats that were filled during President Bush’s tenure when the caseload was lower.  So let us judge each nominee based on his or her qualifications, and not hide behind some pretextual argument that most Americans can see through.

If the Republican caucus continues to abuse the filibuster rules and obstruct the President’s fine nominees to the D.C. Circuit, then I believe this body will need to consider anew whether a rules change should be in order.  That is not a change that I want to see happen, but if Republican Senators are going to hold nominations hostage without consideration of nominees’ individual merit, drastic measures may be warranted.  I hope it does not come to that.  I hope that the same Senators who stepped forward to broker compromise when Republicans shut down the government will decide to put politics aside and vote on the merits of these exceptional nominees.  I also hope the same Senators who have said judicial nominees should not be filibustered barring “extraordinary circumstances” will stay true to their word.  Let us stop the filibustering and consider Nina Pillard’s nomination based on her qualifications.  Let us treat her with the decency that she deserves.  This Nation would be better off having her serve as a judge on the Court of Appeals for the D.C. Circuit.

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