ERA Reemerges as Archivist Nominee Heads to Senate Hot Seat

A long-running political and legal fight over the Equal Rights Amendment’s ratification could be a major topic of questioning as a Senate committee considers a nomination to an ordinarily noncontroversial position—that of the nation’s top archivist.

Whether the Equal Rights Amendment has been fully ratified is a source of legal dispute and pending litigation, which puts Colleen Joy Shogan, President Joe Biden’s nominee for the role of US archivist, in the spotlight Wednesday during her hearing before the Senate Homeland Security & Governmental Affairs Committee.

Some amendment supporters have argued Congress’ 1979 deadline for three-fourths of states to ratify the ERA wasn’t legally valid. They’ve urged the archivist to publish and certify it as the 28th Amendment, without waiting for the outcome of litigation, which is up for oral arguments Sept. 28 at the U.S. Court of Appeals for the D.C. Circuit.

Publication by the archivist wouldn’t determine the amendment’s legal validity, but it would affect public perception and perhaps the chances that courts would recognize the amendment if equal rights advocates use it to challenge state and federal laws as discriminatory.

Shogan would be the first woman to serve as a Senate-confirmed archivist, a role in which she would oversee the National Archives and Records Administration. A Yale Ph.D. and senior vice president at the White House Historical Association, Shogan previously worked at the Library of Congress and as a former Senate policy staffer.

Resisting Issuing Order

The previous archivist David Ferriero, who retired in April, declined to publish the ERA based on a Trump-era memo from the Justice Department’s Office of Legal Counsel that found the ratification deadline to be valid and long expired.

Ting Ting Cheng, director of Columbia University’s ERA Project, said it’s hard to imagine Shogan being a “total renegade” and telling the Senate panel she plans to publish the ERA regardless of the Justice Department memo. Biden still has the authority to demand publication, she said.

The president resisted advocates’ calls to give Ferriero such an order.

The ERA controversy could be overshadowed in Wednesday’s hearing by partisan differences over the National Archives’ role in the recovery of federal documents from former President Donald Trump, including through an FBI search at his Mar-a-Lago home and golf resort in August.

Several senators on the committee said they look forward to speaking with Shogan, but avoided diving into the controversies over the ERA and Trump documents prior to the hearing.

“The National Archives plays an important role in protecting and preserving the records that belong to the US government and the American people,” said an aide for Sen. Gary Peters (D-Mich.), who chairs the Senate committee. “Chairman Peters looks forward to highlighting Dr. Shogan’s qualifications for the job and how this historic nominee plans to execute the responsibilities of the position.”

Republican senators asked about Shogan’s nomination were noncommittal.

“I haven’t looked at it yet. Let’s see how the hearing goes,” Sen. Josh Hawley (R-Mo.) said Tuesday afternoon.

Shogan couldn’t be reached for comment through the White House press office and the White House Historical Association.

Litmus Test?

Sen. Richard Blumenthal (D-Conn.) previously suggested ERA support should be a prerequisite for Biden’s archivist nominee, telling The Atlantic for a February article that he’d be reluctant to support a nominee who didn’t recognize the amendment should be published.

“After generations of fighting for the ERA, sex equality deserves a permanent home in the Constitution,” Blumenthal told Bloomberg Law in an email Tuesday. “Given the current legal landscape, the clearest path forward is for Congress to act.”

Douglas Johnson, who heads the National Right to Life’s anti-ERA project, said it would be a “radical departure from the way this office has been treated in the past and how it’s conceived in the statute,” if Democrats used ERA support as a litmus test for the nominee.

The federal statute creating the archivist position requires the president to appoint a nominee based purely on professional qualifications, not political factors.

Still, Johnson acknowledged he hasn’t seen other Democrats publicly take the position that they should demand ERA support before confirming the archivist nominee.

The National Right to Life, as well as some Republican members of Congress and state attorneys general, have fought the ERA out of concern that it would bolster the case for legal access to abortions nationwide.

If the ERA is added to the Constitution, it would for the first time provide an explicit, constitutional ban on unequal treatment under the law on the basis of sex.

Supporters say the amendment would guarantee equal rights for women, help combat the gender wage gap, and address violence against women, as well as ensure reproductive rights.

As supporters see it, the amendment achieved approval from the necessary three-fourths of states when the Virginia legislature voted to ratify it in January 2020. Those who consider the congressional deadline to be valid say that Virginia’s votes—like the ratification votes of Nevada in 2017 and Illinois in 2018—came four decades too late.

In the appeal pending at the D.C. Circuit, the Illinois and Nevada attorneys general are seeking a court order forcing the archivist to publish the ERA. They’re appealing a federal district court decision from March 2021 that dismissed the case on procedural issues, while the district judge also noted he viewed the congressional deadline as legally valid and the proposed amendment as expired.