NRO's Hypocritical, Sexist Attack On A Qualified Judicial Nominee

Blog ››› ››› SERGIO MUNOZ

Nina PillardThe National Review Online published a string of blog posts featuring sexist, hypocritical, and flawed attacks on Georgetown law professor and Supreme Court litigator Cornelia T.L. Pillard, President Obama's nominee to the critical U.S. Court of Appeals for the D.C. Circuit.

Right-wing media have repeatedly attempted to rally GOP filibusters against the president's nominees to three vacancies on the D.C. Circuit, the appellate court considered the second-most important in the nation and currently skewed to the right. NRO recently joined the attack with the first personal smear, prefaced with the "damning assessment" that an unnamed source claims Pillard is "[liberal Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate."

Obama has nominated three highly-qualified picks to fill these seats and offset the conservative imbalance of the D.C. Circuit's complement of active and senior judges. One of these choices is Pillard, graduate of Yale College and Harvard Law School, veteran of the Clinton administration, and former employee of both the American Civil Liberties Union and the NAACP Legal Defense and Education Fund. She also is an accomplished Supreme Court litigator in sex equality law (also referred to as gender equality law) and a contributor to the successful arguments in United States v. Virginia, which opened the doors of the Virginia Military Institute to women by firmly establishing the equal protection clause of the Fourteenth Amendment applies heightened scrutiny to sex discrimination.

In short, a liberal president nominated an extremely accomplished liberal to the D.C. Circuit.

NRO has responded with four posts that criticize a 2007 law review article Pillard wrote that argues reproductive rights, such as the constitutional right to an abortion, should be encompassed under equal protection grounds as well. Not only is this a decades-old concept at the root of sex equality doctrine, Justice Ruth Bader Ginsburg has made no secret of her support for this idea, even arguing for it in her successful 1993 Senate confirmation hearing.

Notably, the author of the pieces, Ed Whelan, chose an opening for criticizing Pillard that appears to go against his previous defense of then-nominee Justice Samuel Alito. In 2005, Whelan argued that Alito's past anti-choice writings on reproductive rights should not be used as a barometer for how he would rule on abortion as a justice. From the NRO:

[A Washington Post] article notes that one critic (a longtime abortion activist, as it happens) "said Alito applied his sentiments about abortion rights in 1991, when he ruled [in the Third Circuit decision in Casey] that a married woman must inform her husband before having an abortion." Obscured in this assertion is the fact that Alito was not imposing his own will but was instead opining that the spousal-notice provision that Pennsylvania (with strong Democrat support) had enacted was constitutional. And what support is there for the assertion that Alito "applied his sentiments"? None whatsoever. On the contrary, the fact that Alito as a judge has ruled against pro-life interests in several cases demonstrates that he does not indulge any pro-life policy preferences that he may (or may not) have.

The Post's article is simply not responsible journalism, and it does not even make any serious effort to be.

It should be noted that Alito's anti-choice writings that Whelan defended were legal memoranda penned as a Justice Department lawyer and judicial opinions. By contrast, when it comes to Pillard, Whelan is attacking her based on a law review article invoking the well-established constitutional doctrine of sex equality.

The claim that the constitutional protection for abortion is better understood under equal protection is not only arguably mainstream liberal constitutional thought, four justices including Ginsburg endorsed the concept in the 2007 case of Gonzales v. Carhart. Professors of Law Neil S. Siegel and Reva B. Siegel have also argued that reproductive rights as equal protection rights have even greater imprints in constitutional law by appearing within Planned Parenthood of Southeastern Pennsylvania v. Casey, the current touchstone for abortion protections. From "Equality Arguments For Abortion Rights," published in 2013:

The Justices who joined the joint opinion in Casey drew on equality values to interpret the Due Process Clause.  Justices Blackmun and Stevens agreed, making those parts of Casey the opinion of the Court.  But Blackmun's separate opinion in Casey also appealed directly to the Equal Protection Clause: "By restricting the right to terminate pregnancies," Justice Blackmun wrote, "the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care."15  And rather than "compensate women for their ser­vices," Blackmun wrote, the government "assumes that they owe this duty as a matter of course."16  Blackmun observed that "[t]his assumption--that wo­men can simply be forced to accept the 'natural' status and incidents of motherhood--appears to rest upon a conception of women's role that has triggered the pro­tection of the Equal Protection Clause."17

This is now an emergent position on the Court.  Writing for four Justices in Gonzales v. Carhart,18 Justice Ginsburg insisted that "legal challenges to un­due restrictions on abortion procedures do not seek to vindicate some gen­eralized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."19  Build­ing on Casey's equality-informed understanding of the Due Process Clause, four justices in Carhart emphasized that freedom from state-imposed roles is fundamental to equal citizenship.  These justices also appealed to key cases in­terpreting the Equal Protection Clause, including United States v. Virginia.20  Writing for the Court in that case, Justice Ginsburg declared that laws differentiating between the sexes require close judicial scrutiny, but al­lowed government to acknowledge sex differences on the condition that sex clas­sifications "not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women."21

In Carhart, Justice Ginsburg invoked equal protection cases--including Virginia--to counter woman-protective arguments for restricting access to abortion, which appear in the majority opinion.  Woman-protective arguments are premised on certain judgments about women's nature and decisional com­petence.22 But the equal protection precedents that Justice Ginsburg cited are responsive both to woman-protective and to fetal-protective anti-abortion ar­guments.  As Justice Blackmun's Casey opinion illustrates, equality arguments are concerned that gender assumptions shape abortion restrictions, even when genuine concern about fetal life is present.

Right-wing media attacks on the president's qualified nominees have gotten ridiculously removed from discussing actual qualifications. NRO's attacks on Pillard are in that vein, smearing a sex equality advocate because she believes in sex equality law.

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