'Extreme' judicial appointee confirmed to key court position

Washington D.C., Dec 19, 2013 / 00:08 am

The confirmation of Cornelia "Nina" Pillard to the D.C. Federal Circuit Court of Appeals has prompted concerns from critics worried about her "radical" views on abortion and religious freedom.

Ed Whelan, president of the Washington, D.C.-based Ethics and Public Policy Center and former clerk to Justice Antonin Scalia, criticized Pillard's "manifest extremism on abortion" and "extremism against religious liberty."

Whelan offered reflections on Pillard's confirmation in two Dec. 13 posts at "Bench Memos" for National Review Online.

He pointed to the fact "that three reputedly moderate Democrats voted against the Pillard's nomination," saying that this is a testament to her extreme views.

However, these votes against her also deal "a severe blow" to any "ambitions that Pillard might have had to use the D.C. Circuit as a stepping stone to the Supreme Court," he said.  

Pillard, a Georgetown University law professor, has won several significant arguments, opening Virginia Military Institute to women and securing the constitutionality of the Family and Medical Leave Act.

However, she also has a record of advocating strongly for an unqualified right to access abortion and contraception, against the ability to teach abstinence education.

In a 2007 piece entitled "Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family," Pillard argued that the promotion of abstinence education and restrictions on abortion are unconstitutional and "at odds with equal protection" clauses.

Her views have also sparked religious freedom concerns. When presenting a 2011 briefing on the then-upcoming 2011-2012 Supreme Court cases, Pillard opposed a ruling in favor of a Lutheran school's right to hire and fire its own religious employees, saying that it was "a substantial threat to the American rule of law."

When the Supreme Court decided the case, Hosanna-Tabor Evangelical Lutheran Church v. EEOC, it sided with the Lutheran school in a rare unanimous decision.

In September, Senator Chuck Grassley (R-Iowa), a ranking member of the Senate Committee on the Judiciary, said in a testimony before the committee that additional judges in the court were unnecessary, in part because the D.C. Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals.

He added that a judge currently on the D.C. Circuit Court had told him that if "any more judges were added now, there wouldn't be enough work to go around."

Rather than responding to a legitimate need for more judges, Grassley voiced concern that the nominations may have been an effort by the Obama administration aimed at "switching the majority" of the court.

"I'm concerned," he said of Pillard, "by the instances where she has really stretched the limits of thoughtful reasoning…at times she appears to advance her own extreme policy preferences."

Carrie Severino, senior counsel for the Judicial Crisis Network, told CNA last month that the D.C. Circuit Court of Appeals "is the most underworked federal appeals court in the nation," while other appellate courts – including the second, fifth and eleventh circuits – are facing "judicial emergencies" with far more cases than the judges can handle.

However, she observed, the location and structure of the D.C. Circuit make it incredibly important and powerful. The appeals court directly reviews, without prior hearing by a district court, the decisions and rules of many D.C.-based agencies within the federal government.

This means that rulemaking executed by agencies within the executive branch – such as intelligence agencies, the Federal Communications Commission, NASA, and the Federal Trade Commission, among others – go directly to this court.

Severino suggested that the additional judge may be intended to help "push" the administration's regulatory agenda through the court.

Increased regulations have drawn particular concern in the Catholic community recently due to worries over religious freedom. Requirements such as the HHS mandate, which demands that employers provide health insurance covering contraception, sterilization and early abortion drugs for employees, have been criticized and challenged in court as an infringement on religious liberty.

Currently, the court is "evenly balanced," Severino observed, and recent rulings against the Obama's administration's initiatives suggest that the court "will not be lenient enough" to "give him a pass" on initiatives that may be challenged in the future.

While the Senate initially failed to approve a cloture motion for Pillard, a change in procedural rules last month reduced the number of votes necessary to move forward in the approval process. Pillard was confirmed just after midnight on Dec. 12 by a 51-44 vote.

President Barack Obama congratulated her in a Dec. 13 statement, lauding her "landmark accomplishments on behalf of women and families," and her "unwavering commitment to justice and integrity."

The confirmation was also celebrated by Reproductive Health Reality Check, a contraception and abortion advocacy group which predicted that "the impact of Pillard's confirmation could last for decades."