In June, President Obama made an aggressive move to 'stack' the D.C. Circuit by nominating three judges to the second highest court in America. Republicans attacked this action based on concerns about the nominees' constitutional theories and have also questioned the necessity of these nominations given the court's relatively light caseload. The most recent nominee to appear before the Senate Judiciary Committee is Cornelia Pillard, a professor of law at Georgetown with no judicial experience. Skewing the delicate balance of the second highest court in the land is concerning in and of itself, yet a quick glance at Cornelia Pillard's record should raise this concern tenfold.
During her nominations hearing, Senator Ted Cruz put it simply: Pillard's views are "considerably outside of the mainstream." Ms. Pillard has publicly stated that abstinence-only sex education may violate the equal protection rights of women, filed a brief before the United States Supreme Court in which she made comparisons between pro-life demonstrators and the KKK, and made an argument against religious liberty that even Ruth Bader Ginsburg rejected. Democrats have been quick to defend Pillard, saying that statements offered in the realm of academia do not indicate what the speaker or writer's views would be from the bench. Given that Pillard has never served as a judge at any level, how else can she be evaluated if not by her previous writings?
Republican committee members questioned Ms. Pillard about her 2011 comments on the case Hosanna-Tabor Evangelical Lutheran Church v. EEOC,a significant victory for religious liberty. In a unanimous decision, the Court held that the Establishment and Free Exercise clauses of the First Amendment prohibit government interference in employment decisions of a church's ministerial leadership. Before the Court's decision was released, Pillard proffered as a panelist that the Lutheran church's position-that a church's prerogative to hire and fire persons holding ministerial positions is protected by the First Amendment-- was a "substantial threat to the American rule of law." If Pillard had been a sitting justice during this case, she would have been the sole vote against the church- an opinion shared by none of the Court's liberal justices. In fact, Justice Kagan remarked that it was "amazing" to suggest that the Lutheran church's actions were not constitutionally protected.
As Republican senators questioned Pillard on some of her more extreme positions, she explained that remarks made or opinions shared in her capacity as a professor or attorney would not have any bearing on her ability to neutrally interpret and apply laws from the bench. Is this an acceptable response? Is it to be believed that a string of extreme positions taken throughout the career of a law professor and litigant who appeared before the Supreme Court over a dozen times should not bear any determination on one's fitness for a lifetime appointment to the D.C. Circuit Court? The impact that one federal judge can have on the preservation or degradation of the Constitution is immeasurable. An appointee to the D.C. Circuit in particular multiplies that impact tremendously, not only due to the court's distinct jurisdiction, but because the court serves as a feeder to the U.S. Supreme Court. While eccentric positions may be welcome in academia, there is little doubt that such positions taken from the bench would cause even our most liberal justices to disapprove.