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

Tonight we will vote on the nomination of Nina Pillard to the U.S. Court of Appeals for the D.C. Circuit.  On Tuesday, we were finally able to invoke cloture on her nomination, after it had been unjustifiably filibustered by Senate Republicans for nearly three months after being favorably voted out of the Senate Judiciary Committee.  The D.C. Circuit is often considered to be the second most important court in the Nation and should be operating at full strength.  We are finally taking another step towards making this Court operate at full strength for the American people.    

Nina Pillard 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. 

Ms. Pillard has not only stood up for equal opportunities for women, but for men as well.  In Nevada v. Hibbs, Ms. Pillard 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.

She has also worked at the Department of Justice as the Deputy Assistant Attorney General in the Office of Legal Counsel, an office that advises on the most complex constitutional issues facing the Executive Branch.  And prior to that, Ms. Pillard litigated numerous civil rights cases as an assistant counsel at the NAACP Legal Defense & Educational Fund.  At Georgetown Law, Ms. Pillard teaches advanced courses on constitutional law and civil procedure, and co-directs the law school’s 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.

Today, however, I have heard some unfortunate and unfair attacks on this fine woman.  I have heard comments that she would be “the most left wing judge” in U.S. history; that she has extreme views on abortion and religious liberty; and that she would “rubber stamp” the most radical legislative and regulatory proposals.  One might expect these outrageous accusations to come from right wing fringe groups, but to hear some of these outlandish accusations on the Senate floor is unfortunate.

So let me clear the record.  Nina Pillard is one of the finest nominees we have had before this body.  On the issue of abortion, Republicans have cherry picked quotes and taken them out of context to try to paint her as someone she is not.  The truth is that taken as a whole, her writings have focused on bridging the gap between pro-life and pro-choice advocates by “finding common ground for ways to reduce reliance on abortion.” 

More importantly, I cannot ignore the double standard of certain senators on the issue of abortion.  In 2002, the Senate unanimously confirmed President Bush’s nomination of Michael McConnell to the 10th Circuit by voice vote.  Professor McConnell argued that Roe v. Wade was wrongly decided and urged the Supreme Court to overturn it.  He applauded a Federal judge for refusing to convict anti-abortion protestors, even though they had clearly violated the law, because of his sympathetic reading of the defendants’ motives.  

Similarly, in 2002, the Senate confirmed William Pryor to Eleventh Circuit, even though he called Roe v. Wade the “worst abomination in the history of constitutional law.”  Another President Bush nominee, J. Leon Holmes, was confirmed to the Federal district court in Arkansas, even though he had argued that abortion should be banned even in cases of rape because pregnancy from rape is as uncommon as “snowfall in Miami.”  He had also written that wives should be submissive to their husbands.  He was not filibustered.  He was confirmed.

Each of these judicial nominees stated under oath in testimony before the Senate Judiciary Committee that they could set aside their personal beliefs and would interpret the law consistent with the Constitution and Supreme Court precedent.  They were confirmed.  Nina Pillard testified under the same oath that, “A judge’s opinions and views should have no role in interpreting the Constitution.”  Are we to believe that only judicial nominees who do not support a woman’s access to abortion services are able to set aside their personal views to be fair and impartial judges?  I cannot help but notice the glaring double standard that is imposed on Nina Pillard.

On the issue of religious liberty, Senate Republicans continue to misrepresent an incorrect prediction Ms. Pillard made about the possible outcome of a Supreme Court case to suggest she is hostile to religious freedom.  In a 2011 briefing to educate the press on legal issues in Hosanna Tabor v. EEOC, she described the issue in the case, identified what was difficult about it, and offered a prediction of how the Court might resolve it.  Her prediction turned out to be wrong.  If Senators, who have also sworn to uphold the Constitution, were held accountable every time they incorrectly predicted the outcome of a Supreme Court case, I am not sure how many of us would be left.  Ultimately, she has testified that if confirmed she would uphold the Supreme Court’s precedent on the issue.

The suggestion that Ms. Pillard will be “the most left-wing judge in the history” is simply outlandish hyperbole, as demonstrated by the bipartisan support she has received.  Viet Dinh, the former Assistant Attorney General for the Office of Legal Policy under President George W. Bush, wrote in a letter of support for her nomination 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 and Carter Phillips, among many others. 

Despite having filled nearly half of law school classrooms for the last 20 years, women are grossly underrepresented on our Federal courts.  We need women on the Federal bench.  A vote to end this filibuster is a vote to break yet another barrier and move in the historic direction of having our Federal appellate courts more accurately reflect the gender balance of the country. 

I commend President Obama on his nominations of highly qualified women like Nina Pillard, Patricia Millett, Elena Kagan and Sonia Sotomayor.  In each of these women, the Senate has had the opportunity to vote to confirm women practicing at the pinnacle of the legal profession.  Once the Senate confirmed Justice Kagan, the highest court in the land had more women than ever before serving on its bench.  With the confirmation and appointment of Nina Pillard, the same will be true for what many consider to be the second highest court in the land, the D.C. Circuit because she will be the fifth active female judge on the court.  Never before have five women jurists actively served on that court at one time.  I look forward to that moment and to further increasing the diversity of our federal bench. 

I urge my colleagues to vote to confirm this outstanding nominee.  This Nation would be better off for Nina Pillard serving as a judge on the D.C. Circuit.

Today, the Senate will also vote on the nominations of Elizabeth A. Wolford, of New York, to be U.S. District Judge for the Western District of New York; Landya B. McCafferty, of New Hampshire, to be U.S. District Judge for the District of New Hampshire; Brian Morris, of Montana, to be U.S. District Judge for the District of Montana; and Susan P. Watters, of Montana, to be U.S. District Judge for the District of Montana. 

Senate Republicans have continued to abuse the filibuster and required cloture to confirm all four of these noncontroversial district court nominees.  All four of these nominees were reported unanimously by voice vote from the Senate Judiciary Committee.  They all have the support of their home state senators.  With the filibuster of these four district court nominees, Senate Republicans have now filibustered 24 of President Obama’s district court nominees.  Not a single district court nominee was filibustered under President Bush’s eight years in office.  I hope Senate Republicans come around so that we can work together to meet the needs of our Federal judiciary so that the American people can have the justice system they deserve.

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