Senate panel advances appeals court nominee Rao, a Michigan native

Melissa Nann Burke
The Detroit News
Neomi Rao, President Donald Trump's nominee for a seat on the D.C. Circuit Court of Appeals, appears before the Senate Judiciary Committee for her confirmation hearing, on Capitol Hill in Washington, Feb. 5, 2019.

Washington — The Senate Judiciary Committee voted along party lines Thursday to advance the controversial nomination of Michigan native Neomi Rao to the federal appeals court in Washington, D.C. 

Rao ultimately won over two key Republicans who had raised issues with some of her positions, including Sens. Josh Hawley of Missouri and Joni Ernst of Iowa.

The committee voted 12-10 to send Rao's nomination to the full Senate for consideration over concerns raised by Democrats about her views on executive power, her role in President Donald Trump's regulatory rollbacks and articles that Rao wrote as a college student about sexual assault, general equality and race.

If confirmed, Rao would be the first South Asian woman to serve on a federal appeals court — the U.S. Circuit Court of Appeals for the District of Columbia Circuit — which is regarded as the most powerful appeals court in the nation. 

Trump nominated Rao in November for the seat left vacant when Brett Kavanaugh joined the Supreme Court last year.

Sen. Dianne Feinstein, the committee's ranking Democrat, and Chris Coons of Delaware were the only Democrats to participate in the hearing, with their colleagues voting by proxy. 

Feinstein of California said she was opposing Rao due in part to her efforts to dismantle "key regulations," including the Obama-era plan for combating climate change and rules for fuel economy — a statute that Feinstein co-authored and has been law since 2007. 

Feinstein was also irked at what she called "misleading" written responses from Rao to the committee, and that she refused to commit to recusing herself from any case involving regulations that she worked on while serving in her current post as administrator of the Office of Information and Regulatory Affairs for the Trump administration.

"Ms. Rao has a troubling and aggressive record as the head of the Office of Information and Regulatory Affairs," Feinstein said. 

"My concerns about Ms. Rao — from her writings to her work dismantling regulations to her lack of candor with the committee — are simply too great for me to support her nomination to the D.C. Circuit." 

Like several other Democrats, Feinstein scrutinized articles by Rao, including one which she questioned the validity of climate change.

In another, written when Rao was a student at Yale University, she said that if a woman “drinks to the point where she can no longer choose, well, getting to that point was part of her choice.” 

At her committee hearing this month, Rao said she looks back, and "I cringe at some of the language I used," saying that she'd since "matured as a thinker, writer and indeed as a person." 

Rao since wrote to the committee on Feb. 11, saying she “lacked the perspective of how (her articles) might be perceived by others, particularly victims of sexual assault."

But Feinstein was not persuaded, saying Rao's record "demonstrates that these views seem to persist to today."

She cited Rao's involvement in repealing protections for survivors of campus sexual assault, with her office approving the controversial new rules announced last year under Title IX. Supporters of the new rules say they give more due process protections for the accused.

"It is safe to assume this change in the guidance will be challenged in the D.C. Circuit," Feinstein noted. 

Ernst, who recently disclosed she was raped by her boyfriend in college, also criticized Rao's views of date rape and gender equality.

"I don’t think it’s any secret I have hesitation about Ms. Rao’s nomination," Ernst said Thursday.

"I think the things she wrote in college are abhorrent and reprehensible at best. And as I said a few weeks back, I'm concerned by the message that these writings send to young women."

Ernst said she had a lengthy "one-on-one" meeting with Rao and reviewed her Feb. 11 committee letter, "where she explained her evolution in thinking, which led her to no longer agree with her original writings." 

Ernst voted for Rao in committee, but said if she were nominated for "another court at another time" — a reference to Rao as a Supreme Court contender — "my decisions and my vetting process and considerations may be very different." 

Rao, 45, was born and raised in Metro Detroit by two physicians. She graduated from Detroit Country Day School in Beverly Hills, Yale University and the University of Chicago Law School.

She clerked for U.S. Supreme Court Justice Clarence Thomas and Judge J. Harvie Wilkinson III on the U.S. Court of Appeals for the Fourth Circuit before working on Capitol Hill as counsel for the Senate Judiciary Committee. 

She later went to the White House to serve as associate counsel and assistant to President George W. Bush from 2005-06. 

Regarded as an expert in administrative law, Rao is on leave from her job as a professor at George Mason University's Antonin Scalia Law School. 

Hawley, a freshman senator and former Missouri attorney general, had questioned Rao's views on abortion and her interpretation of the legal doctrine of “substantive due process.”

"That strange phrase stands for a dangerous doctrine in constitutional law that has allowed power-hungry judges to invent new 'implied rights' out of thin air and usurp the will of We the People," Hawley wrote in a Wednesday article on the Federalist Society website.

"It’s the doctrine used to justify Roe v. Wade and all manner of other judicial adventurism."

Hawley said Thursday he'd met with Rao the previous day was reassured by the conversation, in which Rao said she would interpret the Constitution based on its text and "not according to changing social and political understandings."

Hawley, who said he would vote for no nominees who would expand the doctrine of substantive due process, was reassured that Rao "emphasized that substantive due process finds no textual support in the Constitution."

Hawley and other Republican senators at the meeting chided right-wing groups for pressuring Hawley over his possible opposition to Rao. 

Carrie Severino of the Judicial Crisis Network — a conservative group that promotes Trump's nominees — slammed Hawley and defended Rao in a statement this week over his raising concerns about her judicial philosophy. 

The Judicial Crisis Network also said it planned a run $500,000 advertising campaign in Missouri to encourage him to support Rao, though later Thursday decided to pull the ads and "will continue to monitor the situation," a spokewoman said. 

Carl Tobias, who studies judicial nominations at the University of Richmond School of Law, said he expects Rao to be confirmed because she's well-qualified for the D.C. Circuit. 

"The GOP will close ranks" Tobias said. "I hope that GOP members will more rigorously question nominees as Hawley did and (Louisiana Senator John) Kennedy has done, but we’ll have to see."

Sen. Lindsey Graham, the committee chairman, said Hawley was doing his job in vetting Rao. 

"The thing I do get concerned about is, she may deny climate change. Can you still be a judge? I hope so. Can you have a different view than me on abortion and still be a judge? I hope so," said Graham, a South Carolina Republican. 

"The point is what Sen. Hawley's talking about is how do you perceive your job or what kind of approach you'll take to being a judge.

"If we're trying to make sure that everybody who comes before the committee thinks like us on every issue under the sun, the only person we could nominate would be you," Graham added.