President Trump’s Indian-American nominee pressed on past writings at judicial nomination hearing

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Neomi Rao (Courtesy: George Mason University)

WASHINGTON – Senators in both parties Tuesday pressed Neomi Rao – President Donald Trump’s nominee to replace Brett Kavanaugh on the federal appeals court in Washington – about her past controversial writings, including about victims of date rape.

Rao, an advocate for broad presidential power, spent more than a decade as a law professor before she joined the Trump administration in 2017 as the White House’s regulatory czar.

Rao, 45, faces opposition from civil rights groups and Democratic senators concerned about her work to roll back government regulations and about provocative columns she wrote as a college student.

She also encountered resistance Tuesday from Republican Sen. Joni Ernst of Iowa who recently disclosed she was sexually assaulted while in college. Rao’s writings from the 1990s on date rape “do give me pause,” Ernst said during the Senate Judiciary Committee hearing.

The senator said she is concerned about the message Rao’s columns send to young women “about who is to blame” and has not decided whether to back Rao’s nomination. “I really want to know more,” Ernst said in an interview.

Rao told senators she cringes “at some of the language I used” in columns she wrote as an undergraduate at Yale.

“I like to think I’ve matured as a thinker, writer and a person,” she said. And Rao emphasized “nobody should blame the victim.”

More than a dozen people, mostly young women, lined up outside the committee room Tuesday wearing black T-shirts with quotes from Rao’s column on date rape and the message #RejectRao.

The president initially tapped Rao in November to succeed Kavanaugh, who served a dozen years on the U.S. Court of Appeals for the D.C. Circuit before his elevation to the Supreme Court. Her nomination comes as Trump has installed a record number of appeals court judges throughout the country – more than any other president two years into a term.

The Senate Judiciary Committee’s new chairman, Lindsey Graham, R-S.C., is moving quickly to confirm additional judges. The panel is scheduled to vote Thursday on a slate of nominees, including a half-dozen appeals court picks.

The D.C. Circuit is often referred to as the nation’s second-highest court because it reviews high-profile cases involving government regulations and separation of powers issues and because it has been something of a pipeline to the Supreme Court. Four current justices previously served on the D.C. Circuit.

In recent years, the appeals court has ruled on cases involving gun control laws, the Trump restrictions on transgender troops serving in the military and the use of military commissions to prosecute terrorism suspects.

But it was questions about Rao’s early writing rather than the court’s docket that dominated the discussion Tuesday. In a 1994 column, Rao wrote: “It has always seemed self-evident to me that even if I drank a lot, I would still be responsible for my actions. A man who rapes a drunk girl should be prosecuted. At the same time, a good way to avoid a potential date rape is to stay reasonably sober.”

Rao said at the hearing that her specific suggestion about women and alcohol was meant as “common sense observation” about “actions women can take to be less likely to become victims.”

Rao was rated “well qualified” by the American Bar Association this week and Republican Senators defended her record. Sen. Ted Cruz, R-Texas, noted she was unequivocal in the 1990s – and now – that anyone who commits a crime of violence should be prosecuted. Her suggestion that college students avoid excessive drinking, he said, is good advice, and he intends to give it to his own children.

“There is certainly nothing disqualifying here,” Sen. Mike Lee, R-Utah, said. “Judicial nominations have become a blood sport,” a reference to lingering bitterness over Kavanaugh’s contentious confirmation battle.

Kavanaugh was confirmed by a narrow margin after California professor Christine Blasey Ford accused him of sexually assaulting her when both were teenagers – allegations he vehemently denied.

Senate Democrats also pressed Rao on her more recent legal writing and her work as head of the Trump administration’s Office of Information and Regulatory Affairs.Rao’s academic papers suggest her approach would be similar to that of Kavanaugh’s when it comes to presidential power. Rao has expressed support for limiting the power of independent federal agencies.

Kavanaugh cited one of Rao’s articles in his 2016 opinion finding the structure of the government’s consumer watchdog agency unconstitutional in part it gives too much executive control to a “single, unaccountable, unchecked director.”

She has also called on the courts to revisit a doctrine, known as “Chevron deference,” which says judges should defer to federal agencies to interpret ambiguously worded laws as long as the agency’s decision is reasonable.

Sen. Christopher A. Coons, D-Del., called Rao’s sweeping view of presidential authority “so outside the mainstream and alarming for the scope and reach of executive power.”

Rao distinguished between the role of a legal scholar and that of a judge. If confirmed, she said, “I would put aside those academic views and follow the precedent of the Supreme Court.”

The committee’s top Democrat, Dianne Feinstein (Calif.), expressed concern about Rao’s involvement in the Trump administration’s effort to pull back Obama-era environmental regulations and protections against wage discrimination. The little-known, but powerful office Rao leads is charged with reviewing agency regulations.

Feinstein asked whether Rao, if confirmed, would recuse herself from lawsuits before the D.C. Circuit involving agency rules she’s reviewed in her role with the administration.

“I will not say, yes, I will not say, no. It is something I will consider,” Rao responded.

Before turning to teaching, Rao worked in all three branches of government. She graduated from Yale in 1995, earned a law degree at the University of Chicago and clerked for Judge J. Harvie Wilkinson III on the Richmond-based 4th Circuit and for Thomas at the Supreme Court.

She served as nominations counsel for then-Senate Judiciary Committee chairman Orrin Hatch and as associate counsel to President George W. Bush, where she worked on judicial nominations.

At George Mason, Rao founded the Center for the Study of the Administrative State and was an outspoken supporter of naming the law school for the late justice Antonin Scalia.

Rao and her husband, Alan Lefkowitz, live in Washington and have two children.

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