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Rao's Roe Row

Updated: Apr 26, 2019

There was quite a row last week in the Senate’s Judiciary Committee over D.C. Circuit Court nominee Neomi Rao. Rao ultimately cleared the committee hurdle, but it was tenuous.

The D.C. Circuit can be a stepping stone to the Supreme Court which brings increased scrutiny. Ironically, the D.C. Circuit’s high profile initially endangered Rao, but the Circuit’s unique focus on administrative law may have been what saved her.

In recent days, Senator Hawley courageously expressed concerns about Rao’s yet-to-be applied judicial philosophy. He voted to report her out of Committee but only after several meetings and assurances.

There is an argument that Rao’s personal views on abortion should not matter. In a perfect judicial world, they would not. In this world – marked with two generations of conservative judicial heartbreak – they do.

Moreover, President Trump was elected on his pledge to nominate judges who would reverse Roe v. Wade. Likewise, Senator Hawley and many other great Senators are committed to confirming judges who will reverseRoe.

So, what do we know about Neomi Rao and abortion? Not much, and that is the problem. We do know she is a social libertarian on at least some issues. Her “dignity” writings provide more questions than answers concerning her views on dwarf throwing, prostitution, and pornography.

We do know she is a long-time supporter of LGBTQ marriage. To her credit, she criticized the Supreme Court’s 2015 LGBTQ marriage opinion as activist, but in the same breath said she was “absolutely pleased with the result as a political matter.” Previously in 2013, she said “[p]ublic opinion is shifting against an exclusionary definition of marriage, a change that I support as a political matter.”

If judges were perfect, their world-views would not matter because they would decide cases based on the law, not their political preferences. But let’s be honest, how many pro-LGBTQ and pro-abortion judges with constitutional judicial philosophies have you met? And, if there were a stable of such judicial unicorns, wouldn’t it still be a safer bet to prefer judicial constitutionalists with conservative world-views over those with liberal ones?

We have been burned too many times over the last two generations with half of Republican Supreme Court nominees going south. Senators Hawley, Ernst, and Cruz are constitutionally, logically, and historically correct to be concerned with putting Rao on our second highest Court. Moreover, they are wise to warn against her consideration for the Supreme Court.

In committee Thursday, Ernst – a principled female voice on the Committee – announced her hesitations about Rao, but agreed to move her out of committee only because her expertise in administrative law matches with the Circuit’s high administrative law case load. But, Ernst warned:

“[S]hould Ms. Rao be nominated for another court at another time, my decisions, and my vetting process and considerations may be very different.”

Senator Cruz also noted that Rao’s “academic and professional background is particularly well-suited for the cases that go through the D.C. Circuit. I would note that my assessment might be very different were this a consideration for the U.S. Supreme Court.”

Their message - shared by most other Republican Senators on the Judiciary Committee - was clear: this far but no further.

It does appear Rao will be confirmed to the D.C. Circuit. If so, she will likely make her mark as an administrative law expert on the “administrative law” oriented D.C. Circuit, where she will write opinions that will help the Supreme Court reverse the Chevron administrative law nightmare. Reversing Chevron is great – but President Trump promised to nominate judges who would reverse Roe – and he meant it!

With a Senate that appears poised to put Rao on the D.C. Circuit, but to stop any talk of her elevation to the Supreme Court, Chevron and Roe are increasingly endangered by this conclusion to Rao’s Roe row.

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