The United States Law Week

Trump Appeals Pick Rao to Meet with Skeptical Republican Senator

Feb. 26, 2019, 8:34 PM

Trump appellate court nominee Neomi Rao will meet Wednesday with a Republican senator who’s questioned her views on substantive due process, and is concerned about whether she’s conservative enough on abortion and other hot-button issues.

Rao, who’s slotted to replace Supreme Court Justice Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit, will meet with Sen. Josh Hawley of Missouri, he said in a statement.

The freshman conservative sits on the Judiciary Committee, which has yet to vote on whether to send Rao’s nomination to the full Senate for confirmation. Republicans hold a two-vote margin on the panel, and Hawley says he’s not sure which way he’ll go.

Rao could still squeak by on a tie committee vote and ultimately be confirmed with Republicans holding a comfortable margin in the full Senate. It’s unusual so far for Republicans to publicly express doubts about Donald Trump judicial selections, who’ve consistently pleased conservatives though a couple have failed to get through the confirmation process.

Hawley spoke out on Monday in a radio interview about Rao and substantive due process. It protects rights that aren’t enumerated in the U.S. Constitution, and has been used to establish rights to abortion and same-sex marriage.

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

Activist judges often use substantive due process “to justify making policy from the bench,” Hawley said in a press release announcing his meeting with Rao, who’s Trump’s top regulatory official and who’s never been a judge.

If confirmed, Rao would sit on what many call the nation’s second most powerful court due to its role in reviewing decisions of federal agencies. It doesn’t hear very many cases on abortion, but it’s been a stepping stone to the Supreme Court, which does.

Chief Justice John G. Roberts Jr., and Justices Ruth Bader Ginsburg, Thomas and Kavanaugh all came up from the D.C. Circuit, and some have said Rao is on Trump’s short list for a high court appointment.

Close Margin

Sen. Joni Ernst, another Judiciary Committee member, and an unnamed Republican senator have also expressed concerns about Rao publicly and privately, though Ernst reportedly warmed to the nominee after meeting her.

The Judiciary Committee has 12 Republicans and 10 Democrats. In the event of a tie, the committee could report the nomination to the Senate floor without a recommendation to confirm or reject. But Republicans may decide not to schedule a committee vote unless they are certain she will be reported favorably.

Republicans control the Senate, 53-45, with two independents who caucus with Democrats. A simple majority is needed for confirmation.

Three Questions

Hawley outlined three questions about Rao’s views on constitutional law related to specific academic writings, in a letter accompanying his meeting announcement.

He wants to know Rao’s views on whether the Constitution “confers substantive constitutional rights to dignity and whether those rights trump democratically passed laws,” the letter said.

Hawley cited Rao’s statement that there is a “long history of treating individual choice and autonomy as an integral preeminent component of human worth” in American constitutional law.

The senator would also like to discuss Rao’s “approach to the use of outside sources in interpreting statutes and the Constitution,” he said.

Hawley quoted Rao as saying that extra-legal sources can assist judges in determining when its necessary to depart from past practices.

Hawley also has questions about Rao’s analysis of precedents concerning abortion and same-sex marriage in a 2011 law review article, he said.

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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