Tomorrow, the Senate will vote on whether or not to move to a confirmation vote on the nomination of Cornelia (Nina) Pillard to the U.S. Court of Appeals for the District of Columbia Circuit.
Nina Pillard is the second of three exceptionally qualified nominees to the D.C. Circuit pending before the Senate. She has had a remarkable legal career, checking every box of excellence and achievement. She has a broad spectrum of legal experience, having litigated at every level of the federal courts, including the Supreme Court, where she has argued nine cases and briefed dozens more. She served two tours in the Department of Justice, in the Solicitor General’s office and the Office of Legal Counsel. Currently, she is a professor at Georgetown University Law Center, where she both teaches and serves a Co-Director of the Supreme Court Institute, which prepares lawyers for oral argument.
In addition to her stellar qualifications and extraordinary experience, however, Nina Pillard’s career has an additional outstanding characteristic: she has been involved in two of the most significant recent Supreme Court cases dealing with women’s legal equality. First, she wrote the winning briefs in the case that opened the Virginia Military Institute to women. After the George H.W. Bush Administration first challenged the school’s male-only admissions policy, she wrote the briefs on behalf of the Clinton Administration that convinced the Supreme Court to strike it down under the Equal Protection Clause. Nina Pillard’s role in the VMI case has earned her the support of VMI alumnae, the former VMI superintendent (who initially opposed the admission of women), and over thirty former military officials [PDF].
Second, in 2003, Nina Pillard represented William Hibbs, a state employee who was fired because he sought to take unpaid leave under the Family and Medical Leave Act (FMLA) to care for his wife. She argued the case alongside Viet Dinh, who represented the George W. Bush Administration and who also supports her nomination [PDF]. The Court, in a decision written by Chief Justice William Rehnquist, ruled that money damages under the FMLA’s family-care provision are available against state, as well as private, employers, on the grounds that the provision constitutes “appropriate legislation” under the Fourteenth Amendment to redress pervasive sex discrimination. Nina Pillard successfully argued that the provision was intended to remedy discrimination arising from assumptions that women, and not men, are family caregivers.
In both of these cases, Nina Pillard defended the bedrock principle of equality that is the foundation of our Constitution, just as Ruth Bader Ginsburg did a generation before. For women across the country, this is the highlight of Nina Pillard’s superlative legal career, and the very reason that she is not just qualified, but the very type of person who should be confirmed to the federal bench. What is more, only five women have served on the D.C. Circuit in its 120-year history – making the confirmation of an exemplary nominee like Nina Pillard long overdue.
Unfortunately, however, Nina Pillard’s nomination is instead facing the worst kind of obstruction. Like Patricia Millett only two weeks ago, and Caitlin Halligan seven months earlier, her nomination is being threatened with a filibuster on the utterly specious grounds that the D.C. Circuit doesn’t have enough work to justify confirming any more judges.