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ERA Ratification Fight Makes Ho-Hum Archivist Job a Hot Seat (1)

April 29, 2022, 9:34 AMUpdated: April 29, 2022, 2:01 PM

Controversy tied to the Equal Rights Amendment looms over the retirement of a little-known federal agency head, U.S. Archivist David Ferriero, whose decision not to publish it as part of the Constitution prompted litigation that will outlast his tenure.

His successor would inherit the dispute over the amendment—assuming it isn’t soon resolved in Congress or the courts—and likely after running the gauntlet of an unusually politicized Senate confirmation.

The job of archivist, head of the National Archives and Records Administration, is traditionally a non-political job for which presidents have consistently chosen librarians and history professors since the position was created in 1934. Ferriero, the 10th to hold the post, was confirmed in November 2009, during the administration of Democrat Barack Obama. The 76-year-old’s last day is Saturday.

“The lockdown in Congress does not augur well for a speedy confirmation,” said Carol Jenkins, president and chief executive officer of the ERA Coalition, which has been urging Ferriero to publish the Equal Rights Amendment for more than two years.

He has declined, citing a January 2020 legal opinion issued by the Trump-era Justice Department that found a 1979 ratification deadline set by Congress to be valid, meaning the final three state ratification votes came four decades too late. Law professors argued in a Jan. 10 analysis that the Justice Department opinion was flawed.

The outcome of it all—the next archivist’s decision, possible action in Congress to remove the deadline, and the pending appeal of ERA backers’ March 2021 loss in federal court—will determine whether the nation recognizes for the first time an explicit constitutional guarantee of women’s equality.

Supporters of the proposition, which Congress sent to the states in 1972, say it’s still needed to address a long list of disparities such as the gender pay gap, pregnancy discrimination, violence against women, and reproductive rights. They also contend the amendment already is legally part of the Constitution, but that publication by the archivist is needed to ensure broad public acceptance of it.

Its opponents say the amendment isn’t needed because of other anti-discrimination protections in federal law and that its ratification would inspire new lawsuits challenging previously upheld state laws such as abortion restrictions.

Tough Road in Senate

Whomever President Joe Biden selects to replace Ferriero is likely to face tough questions in an evenly divided Senate, including whether they will commit to publishing the Equal Rights Amendment, said Douglas Johnson, who heads the National Right to Life’s anti-ERA campaign.

“I’m sure that the nominee is going to be asked many times whether he or she has made such a commitment,” he said.

“It’s not clear to me how far the Democrats will go with this,” Johnson added, noting some members of Congress have suggested using ERA support as a litmus test for an appointee. It’s also possible Biden won’t name a replacement this year, since there’s no deadline for doing so and confirmation would be difficult, he said.

A new archivist’s confirmation would require 51 votes in the Senate, where Democrats have only 50 caucus members plus the vice president if needed as a tie-breaker, leaving the president’s party with no margin for defections.

Two Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, have openly supported the Equal Rights Amendment. Other Republican senators have been largely silent on the issue, although a House vote in March 2021 to remove the deadline passed largely along party lines, with most GOP members opposed.

The National Archives also has been involved in other politically charged issues recently, including its role in releasing records from former President Donald Trump’s administration to the congressional committee probing the Jan. 6 attack on the U.S. Capitol and in recovering records from Trump’s Mar-a-Lago residence in Florida.

“We understand that it will be a complex and difficult confirmation no matter what,” Jenkins said.

Out of the Libraries

Democrats in Congress, notably Rep. Carolyn Maloney (D-N.Y.), who chairs the Oversight Committee that has authority over the National Archives, have repeatedly called on Ferriero to publish the amendment and urged the Justice Department to rescind its 2020 legal memo.

It’s an unusual amount of political attention for a typically non-politicized post. The president must appoint an archivist “without regard to political affiliations and solely on the basis of the professional qualifications required,” according to the federal statute governing the National Archives.

Ferriero, who’s retiring after 12 years on the job, previously was head of New York’s public library system and worked in the libraries of Duke University and the Massachusetts Institute of Technology before that.

Debra Steidel Wall, who is deputy archivist and will serve as acting archivist until Biden appoints Ferriero’s successor, is a career record-keeping professional, having worked for the National Archives since 1991.

Ferriero didn’t respond to requests for comment.

Deadline Disputes

The previously behind-the-scenes controversy over the ERA became notably more urgent in January 2020, when Virginia’s legislature voted to ratify the measure. This vote arguably gave it the necessary approvals by three-fourths of states to make it the 28th Amendment.

Opponents say Virginia’s vote—like state legislators’ votes in Nevada in 2017 and Illinois in 2018—came years too late, and the January 2020 legal opinion from the Justice Department’s Office of Legal Counsel agreed. A Biden appointee issued a revision to that opinion in January 2022 that gave the green light to Congress and the courts to give the ERA recognition, but stopped short of rescinding the 2020 opinion or declaring the ratification deadline to be void.

The U.S. Court of Appeals for the D.C. Circuit is likely to be the next court to weigh in regarding the amendment’s validity. An appeal there challenges a lower court’s March 2021 decision, which found the state attorneys general from Illinois, Nevada, and Virginia lacked a viable legal claim in asking the court to order the archivist to publish the amendment. That lower court also found the ratification deadline set by Congress to be valid and the latest state votes to be too late.

Briefing in that appeal finished earlier this week with a filing from the Illinois and Nevada AGs, and oral arguments are yet to be scheduled. Virginia’s new Republican attorney general withdrew from the case in February.

Amendment supporters are pushing for a Senate vote on a resolution removing the deadline and declaring the ERA to be fully ratified, after House Democrats passed such a resolution in 2021. Like other Democratic proposals, the resolution faces a challenge in clearing the 60-vote threshold for ending debate to get a final floor vote, Jenkins said.

“We’ve always understood this to be a fight on every single front,” she said.

(Updates to add detail about federal law requiring an archivist be appointed solely on the basis of his or her professional qualifications.)

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

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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