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Archivist Pick Leaves Equal Rights Amendment to Courts, Congress

Sept. 21, 2022, 4:29 PM

President Joe Biden’s nominee for the next US archivist would need federal court or congressional confirmation that the Equal Rights Amendment is fully ratified before she would publish the measure as part of the Constitution, the nominee told a Senate hearing Wednesday.

“Who will decide the fate of the ERA is the federal judiciary and/or Congress,” Colleen Shogan, the archivist nominee, said in response to questions from Sen. Rob Portman (R-Ohio).

As part of the long-running dispute over the Equal Rights Amendment, the previous archivist David Ferriero faced pressure from ERA advocates to publish and certify it as the 28th Amendment to the US Constitution. He declined, deferring to the Justice Department’s Office of Legal Counsel that deemed in a January 2020 legal memo the amendment’s ratification period to be long ago expired.

If confirmed as archivist, Shogan would stand by the findings of that memo as Ferriero did, unless a court order found otherwise, she told senators at her confirmation hearing.

Congressional Deadline

Congress first sent the proposed Equal Rights Amendment to states in 1972 with a seven-year deadline for three-fourths of states to ratify. The final three state approvals to reach that threshold came in Nevada, Illinois, and Virginia in 2017, 2018, and 2020, respectively.

ERA supporters contend that the ratification deadline is meaningless because the amendment process laid out in the Constitution doesn’t authorize Congress to set deadlines. The Justice Department memo and a federal district court decision from March 2021 disagree, finding the deadline to be valid and those final state ratification votes to be four decades too late.

The Democratic attorneys general of Illinois and Nevada are appealing that March 2021 decision in the US Court of Appeals for the District of Columbia, where oral arguments are scheduled for Sept. 28.

Democrats in Congress also are attempting to remove the ratification deadline retroactively, through a resolution that the House passed in 2021 and is awaiting a vote in the Senate.

Republican senators in Wednesday’s committee hearing also questioned whether Shogan could serve as a nonpartisan official, as the role of US archivist is designed to be—citing an academic article she wrote about anti-intellectualism and rhetoric among GOP presidents.

“You’re trying to present yourself here as a nonpartisan,” said Sen. Josh Hawley (R-Mo.). “In fact, you’re extreme partisan, and your record shows that.”

Shogan pointed to her time working for the Congressional Research Service, the Library of Congress, and the White House Historical Association.

“I stand by my long experience, over 15 years, of nonpartisan service,” she said.

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com