The United States Law Week

Rao ‘Cringes’ at Yale Writings on Rape, Says Views Changed (3)

Feb. 5, 2019, 5:15 PMUpdated: Feb. 6, 2019, 1:02 AM

Neomi Rao, nominated to take Brett Kavanaugh’s former appeals court seat and facing questions about her college-era writings on rape and gender rights, told a Senate committee that she “cringes” today at some of the language she used at the time and said her views have changed.

“I like to think I’ve matured as a thinker and a writer,” Rao said in answering questions about her days at Yale in the mid 1990s that were posed by Republicans and Democrats at her Judiciary Committee confirmation hearing.

Rao is the Trump administration’s chief regulatory official and was nominated to replace Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit, which is arguably the second-most powerful court after the U.S. Supreme Court because of the government-related cases it hears.

But Democrats believe she’s not suitable to sit on the D.C. Circuit, partly because she’s never tried cases in state or federal courts or been a judge. They’re also concerned with her writings and her role in the Trump administration’s rollback of environmental and other regulations.

Specifically, they asked Rao whether she’d honor Supreme Court precedent under Chevron deference, an administrative doctrine in which courts defer to decisions of government agencies. She said she would.

She declined, however, to say that she’d recuse herself from Trump administration regulatory matters that come before the court, noting her lack of judicial experience. She said she would take things “case by case,” and consult the law and colleagues, and follow circuit practices.

Rao also said she’d put aside her personal views when judging cases, but stressed that her academic and government experience over the past 20 years “fits very well” with the D.C. Circuit’s specialized docket.

She’s currently the administrator of the Office of Information and Regulatory Affairs, which is part of the White House budget office.

A University of Chicago Law School graduate and former clerk for Supreme Court Justice Clarence Thomas, Rao’s also a tenured professor at the Antonin Scalia Law School at George Mason University where she founded and directed the Center for the Study of the Administrative State. She was also an assistant White House counsel in the George W. Bush administration, and was once a reporter for the Weekly Standard.

‘Well Qualified’ Rating

Rao received the American Bar Association’s highest rating of “Well Qualified” on the eve of her hearing.

Her confirmation is likely, barring an unforeseen misstep or other major development, since Republicans have expanded their majority in the Senate.

“She’s a distinguished scholar and prominent attorney. Although she certainly has big shoes to fill having been nominated to fill Justice Kavanaugh’s seat, I’m more than confident she’s up to the task,” said Utah Republican Mike Lee, who later decried judicial nominations as a “blood sport” in Washington.

But one Republican, Sen. Joni Ernst of Iowa who recently disclosed that she was raped in college, is reportedly undecided about Rao’s nomination. She said at the hearing that her writings “do give me pause” regarding the message being sent to young women.

The Capitol Hill vetting is the latest to focus critically on college-era or earlier writings or experiences of Trump judicial nominees. Kavanaugh’s confirmation to the Supreme Court last fall was marked by searing hearings over allegations he sexually assaulted a girl while in high school, which he denies.

Democrats, including Sens. Richard Durbin of Illinois and Richard Blumenthal of Connecticut, zeroed in on writings from Raos’s college years and statements made as a professional they consider troubling at best and disqualifying at worst. Republicans also asked her to explain her views, but in gentler questioning.

Garnering particular attention from both sides was her opinion while a student in 1994 that a “good way to avoid a potential date rape is to stay reasonably sober.”

If a woman “drinks to the point where she can no longer choose, well, getting to that point was part of her choice,” Rao said.

Moreover, Democrats have raised questions about her past description of LGBT rights as a "[t]rendy political movement” and her labeling of race as a “hot, money-making issue,” which she wrote in 1996 piece while a reporter at the Weekly Standard.

When questioned by Durbin, Rao couldn’t recall specific written positions on “myths about AIDS,” or “myths about sexual and racial oppression.” But she recalled her college years in New Haven, Conn., as a “time of exploration,” and that she engaged in a mix of liberal arts idealism and youthful open expression.

She said she studied political philosophy and read social commentary, and that students wrote for each other on a narrow sets of issues. She said she’d “always been someone who has taken problems of sexism and racism seriously.”

Rao also said that she, in her writings on rape, “tried to make common sense observations” to make women less likely to become crime victims.

But “I think there are sentences and phrases I would never use today,” Rao said, noting that they don’t reflect her views or values now.

“I’ve had a lot of experience since that time,” adding that she wouldn’t write anything now that would blame a victim.

She affirmed that “rape is a horrific crime” and that women on college campuses should “feel free” to bring forward claims of sex assault or rape.

(Updates with hearing testimony throughout)

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com;

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