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Writings May Trip Up Rao En Route to Replacing Kavanaugh

Feb. 4, 2019, 10:13 PM

Neomi Rao’s past writings on date rape, and race and gender will draw scrutiny from Democrats at Tuesday’s Senate Judiciary Committee confirmation hearing on her nomination to replace Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit.

Rao is one of the most controversial Donald Trump judicial picks since Kavanaugh, whose epic confirmation battle last fall polarized the nation. She’s also the president’s second nominee to arguably the nation’s second-most powerful court.

Kavanaugh, Chief Justice John Roberts, and Justices Ruth Bader Ginsburg and Clarence Thomas all rose to the Supreme Court from the D.C. Circuit. And some believe Rao could be a high court short-lister if she clears the confirmation hurdle, as expected.

A daughter of Indian immigrants and a Trump regulatory official, Rao likely will be asked at the hearing about writings dating back as far as college on a wide range of controversial issues.

Progressives have criticized her as an unsuitable nominee. Rao’s “inflammatory discussion of race, rape & LGBT rights cannot be condoned with a lifetime appointment,” Judiciary Committee member Richard Blumenthal of Connecticut tweeted in January.

Progressives have also criticized Rao for championing the Trump administration’s deregulation efforts in her current role, as administrator of the White House’s Office of Information and Regulatory Affairs.

But Rao is likely to win Senate confirmation with Republicans holding a larger majority at 53-45.

Thomas Clerk

Rao has never been a judge or tried any cases, but she clerked for Thomas and Fourth Circuit Judge J. Harvie Wilkinson.

She also founded the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School, where she’s been a professor since 2006. The school has been a feeder to regulatory positions in the Trump administration.

Rao’s “extensive experience in the field of administrative law will be an asset on the D.C. Circuit,” Carrie Severino of the Judicial Crisis Network, an organization that supports Trump’s nominees, said in a statement emailed to Bloomberg Law.

Rao is a member of the Federalist Society, an organization of conservatives and libertarians that has helped Trump pick judicial candidates.

Rape, Civil Rights

Some of Rao’s writings criticized by progressives are almost 25 years old.

Rao wrote that a “good way to avoid a potential date rape is to stay reasonably sober,” while a student at Yale University in 1994.

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.

The article blamed victims and dismissed survivors of rape, Blumenthal said.

The Leadership Conference on Civil and Human Rights, a progressive advocacy group, criticized Rao’s description of LGBT rights as a "[t]rendy political movement,” also in 1994.

The conference also took issue with Rao’s labeling of race as a “hot, money-making issue,” in a 1996 piece she wrote as a reporter at the Weekly Standard.

Dwarf-Tossing

Rao has also been critical of restrictions on “dwarf-tossing,” a bar activity in which dwarfs are tossed onto mattresses or velcro walls, as an example of how dignity arguments can be used to coerce individuals.

A French ban on dwarf tossing was an example of “dignity as coercion” that “may impinge upon human agency by overriding individual choice in favor of the dignity chosen by the community,” she wrote in a 2011 Notre Dame Law Review article.

Though the example has been ridiculed, Rao made a serious point that “one can disagree with another’s choices, but dignity is about the right to make those choices instead of having the government make them for us,” according to a piece in Reason, which supports “free minds and free markets.”

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