The United States Law Week

Rao’s Nomination Advances, Would Take Kavanaugh’s Old Seat (1)

March 12, 2019, 7:02 PMUpdated: March 12, 2019, 7:39 PM

Neomi Rao closed in on likely confirmation Tuesday to Justice Brett Kavanaugh’s old seat on the nation’s second-most powerful court and the end of her role as the Trump administration’s top regulatory official.

The Senate advanced Rao’s nomination 53-46 on a procedural vote that set in motion her expected confirmation to the U.S. Court of Appeals for the District of Columbia Circuit as early as Wednesday.

Prior to that vote, the Senate confirmed Paul Matey to the Third Circuit. Matey is the 35th Trump circuit court nominee to win confirmation as part of a drive by the White House and Senate Republicans to reshape the judiciary with conservative jurists.

Matey was confirmed 54 to 45 despite opposition from home-state Democratic senators from New Jersey.

Rao’s confirmation prospects to replace Kavanaugh, now on the U.S. Supreme Court, recovered from a bumpy stretch when Republicans clashed over her conservative credentials.

Sen. Josh Hawley questioned her views on substantive due process. It protects some rights that aren’t enumerated in the Constitution, and has been used to establish rights to abortion and same-sex marriage.

Hawley said his concerns were resolved after meeting with Rao, noting her pledge to interpret the Constitution according to its text, structure and history, not to today’s political environment.

Conservative Supreme Court Justices Clarence Thomas and Neil Gorsuch recently suggested that the court revisit the doctrine.

Rao also drew questions from Republican Sen. Joni Ernst of Iowa over controversy surrounding her college-era writings about sexual assault and gender rights. Ernst recently disclosed that she was raped in college.

Both Ernst and Hawley voted yes on Tuesday’s motion to end debate and send Rao toward a confirmation vote.

Democrats oppose Rao over her conservative positions on issues like regulation and executive authority, and her lack of judicial experience.

(Recasts lead and updates throughout with Neomi Rao cloture vote )

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

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

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