What the War Over Naomi Rao Teaches Us About Future Judicial Nominations

Why you should care

Because one of President Trump’s key judicial nominations has hit some unexpected snags. 

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While many of us get nostalgic about the 1980s and early 1990s by donning shoulder pads and hitting karaoke bars, a new wave of middle-aged public figures has been living on the prayer that the period would just beat it. The un-lost decade has come roaring back lately as a minefield of youthful indiscretions, questionable statements, potential crimes and horrible costume choices for a whole slate of politicians and judicial nominees, including most of Virginia’s leadership and recent Supreme Court appointee Brett Kavanaugh.

One of the latest to run the hot-tub time-machine gauntlet is President Donald Trump’s nominee to fill the seat that Kavanaugh left vacant on the powerful D.C. Circuit Court of Appeals. Neomi Rao, who currently serves as administrator of the White House Office of Information and Regulatory Affairs (OIRA), came under fire during her Senate confirmation hearing earlier this month for some opinions she expressed as a college student at Yale in the early 1990s, including that sexual assault at college parties could be avoided if women didn’t drink too much. Rao, 45, admitted to the Senate Judiciary Committee that some of her early writings were “cringeworthy,” but now she faces a new round of scrutiny — this time from some prominent conservatives who think that her more evolved judicial philosophy, and not her collegiate views, could sink her nomination.

Rao’s almost impeccable conservative credentials haven’t satisfied everyone in the Republican Party.

The D.C. Circuit, widely regarded as ”the second highest court in the land,” is known as the primary feeder court for Supreme Court nominees. Four current justices (John Roberts, Clarence Thomas, Ruth Bader Ginsburg and Kavanaugh) served there. Rao’s position as a young, accomplished woman of color in a pool of Republican judicial nominees that is overwhelmingly white and male also makes her a prime contender for one of the next Supreme Court vacancies. With the 85-year-old Ginsburg’s iffy health and the possibility that Thomas, 70, could retire soon so Trump can appoint a replacement, the question is an urgent one. Remember, says Daniel Urman, a law and policy expert at Northeastern University, “presidents love to nominate ‘firsts,’ which tend to activate the community of which the first is a part.”

First, however, Rao needs to make it onto that feeder court. The irony that the woman hoping to follow Kavanaugh — whose confirmation focused on his behavior in high school and college and was almost waylaid by multiple sexual assault allegations — has been confronted about her own questionable collegiate actions is not lost on many court watchers, even if Rao has a decidedly different view toward the overconsumption of alcohol.

Among the statements that came back to haunt Rao at her hearings were her claims that racial and sexual oppression was “a myth” and that there is a “dangerous feminist idealism which teaches women that they are equal.” “I very much regret that statement,” she informed the committee, saying she hoped she had “matured as a thinker and writer and indeed as a person.” Putting aside any immature views, there is plenty in Rao’s background to be proud of. Raised in suburban Detroit, the daughter of immigrant doctors from India graduated from Yale before earning a law degree at the University of Chicago. She has served in all three branches of the federal government, including as a clerk for Justice Thomas, a counsel to the Senate Judiciary Committee and an associate counsel to President George W. Bush. 

Rao is also an accomplished scholar who has written extensively about the regulatory process and the authority of federal agencies from her perch at George Mason University, where she also founded the Center for the Study of the Administrative State (funded largely by the conservative Charles Koch Foundation). Rao’s conservative views and expertise on regulatory policy have made her the perfect person to head OIRA, which helps dictate how the Trump administration implements its regulatory reform agenda.

 

Rao’s almost impeccable conservative credentials, however, haven’t satisfied everyone in the Republican Party. Sen. Joni Ernst of Iowa said during Rao’s hearing that Rao’s college writings on sexual assault “do give me pause,” and news broke in recent days that anti-abortion Sen. Josh Hawley of Missouri has expressed concerns to party leaders that Rao’s more recent record doesn’t indicate clearly where she stands on the issue of abortion.

Most court watchers, including Urman, believe that the conservative pushback will blow over and Rao will sail through confirmation in the Republican-controlled Senate. (She still awaits a committee vote.) Rather, the true significance of her confirmation — building on the recent blackface controversy as well as Kavanaugh’s own fraught nomination — is the glimpse it offers into the future of American judicial nominations, says Urman. “How much of what you say as a young adult can be held against you? How much of a ‘tell’ is it about your temperament and character?”

And how much will future confirmation hearings, including possibly Rao’s own to the Supreme Court, be characterized by an examination of not only the nominee’s judicial decisions and scholarly articles but also her college papers, journals, yearbooks, even social media profiles? The two are not as separate as most nominees would like us to believe. Even if Rao has disclaimed her college views on campus rape, for example, at OIRA she signed off on a rollback of Title IX protections for victims of sexual assault on college campuses first proposed by the Obama administration.

In the future, says Urman, high court appointees like Rao will have to hand over all paper and digital trails to get ahead of any “cringeworthy” moments, and the vetting of judicial nominees will get deeper, wider and more contentious. In some ways, Kavanaugh’s confirmation and the row over Rao suggest we may be destined to hit replay on another throwback pop culture sensation from the 1980s: the nomination of Robert Bork, the controversial Supreme Court nominee whose 1987 confirmation battle shaped the partisan judicial landscape that Rao and every other nominee must still traverse today.

Trump’s Other Court Options

Besides Neomi Rao, here are a few other judges who could be on President Trump’s short list if there is another Supreme Court opening:

Thomas Hardiman — Always a bridesmaid, never a justice. This law-and-order conservative from the 3rd Circuit Court of Appeals has been a Trump favorite for a while but was passed over for both Justice Neil Gorsuch and Kavanaugh. Will the third time be the charm?

Amy Coney Barrett — A Notre Dame law professor and practicing Catholic from New Orleans, Barrett also made the shortlist for the Kavanaugh seat. The 7th Circuit Court of Appeals judge and former clerk for Justice Antonin Scalia would check a lot of boxes for Trump: young (47), deeply conservative, telegenic and family-oriented (the mother of seven children).

Diane Sykes — Also from the 7th Circuit, Sykes doesn’t fit the typical judicial mold, which is perhaps why she might appeal to Trump. Born and raised in Milwaukee, the Marquette Law School grad and former journalist is a bit of a legal maverick, even siding with liberals at times, including on abortion. 

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