Neomi Rao testifies before the Senate Judiciary Committee during her confirmation hearing to be U.S. Circuit judge for the District of Columbia Circuit, on Feb. 5, 2019. Photo: Diego M. Radzinschi/ALM

Neomi Rao, the Trump administration’s choice to fill the D.C. Circuit vacancy left by Justice Brett Kavanaugh, defended, and expressed some regret for, writings she penned in the 1990s that have come under scrutiny.

The nominee to the U.S. Court of Appeals for the D.C. Circuit admitted during a Tuesday confirmation hearing before the Senate Judiciary Committee that some of the language she used in those columns—expressing her views on campus multiculturalism, sexual assault and more—made her “cringe.”

“To be honest looking back at some of those writings and re-reading them, I cringe at some of the language I used,” Rao said Tuesday in an exchange with committee chairman Sen. Lindsey Graham, R-South Carolina. “I was young—it’s over two decades ago now—but you know, I think I was responding to things that were happening on campus at that time.”

“In the intervening two decades, I like to think I have matured as a thinker, a writer and indeed as a person,” she said.

Rao’s comments, which came in a hearing that lasted over two hours, marked the first time she’s addressed the columns she wrote as a Yale undergraduate in the mid-1990s. The Alliance for Justice, a liberal group that has opposed Rao’s nomination, said the pieces demonstrate her “hostility toward racial and gender equality, sexual assault survivors,” among other things.

Among the columns that have drawn the most controversy was an October 1994 piece where Rao, writing about an alleged date rape incident at Yale, suggested that a way for women to avoid “date rape is to stay reasonably sober.”

Rao said Tuesday that the column made it “very clear that rape is a terrible crime for which men should be held responsible.”

“No one should blame a victim of rape or sexual assault. I was trying to make, and perhaps not in the most elegant way, the sort of common-sense observation that excessive drinking can lead to risky and dangerous behavior for both men and women,” Rao said in an exchange with Sen. Patrick Leahy, D-Vermont.

Rao said she “certainly” regretted “any implication of blaming the victim.”

Rao currently serves as the head of the Office of Information and Regulatory Affairs, a position often referred to as the White House regulatory czar. In that role, Rao has spearheaded the Trump administration’s deregulatory agenda, including its “two-for-one” effort to cut two regulations for every new one introduced.

If confirmed by the Senate, Rao would ascend to a court widely considered the second highest in the nation, in part because it receives the bulk of cases challenging the federal government’s actions.

Rao did not commit on Tuesday to recusing herself from matters she worked on at OIRA, but said she’d look carefully at statutory standards for recusal, consult with colleagues and follow precedents and practices on the D.C. Circuit.

Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary committee who initially pressed Rao on the issue of recusal, noted Trump’s first nominee to the D.C. Circuit—Greg Katsas—committed to recusing himself from issues he worked on while serving as deputy counsel in the Trump White House.

Rao has served as the head of OIRA since her July 2017 confirmation. She’s currently on leave from her role as director and founder of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.

The American Bar Association’s standing committee on judicial nominations rated Rao “well qualified” on Monday.

Still, Rao faces intense opposition from liberal advocacy groups over her previous writings. They’ve also criticized her lack of judicial experience.

“Neomi Rao’s record of offensive statements about women, sexual assault survivors, LGBTQ people, people of color and the environment is matched only by her track record of advancing federal government policies that are deeply harmful to these same communities and interests,” said Nan Aron, who heads the Alliance for Justice.

Rao said during Tuesday’s hearing that she believed her academic and practical experience—including working in all three branches of the federal government—“relates very closely to the specialized docket of the D.C. Circuit.”

Rao’s writings, particularly those criticizing multicultural groups on campuses, have drawn comparisons to the undergraduate columns written by Ryan Bounds, a withdrawn nominee to the Ninth Circuit. In one article, Bounds railed against “race-focused groups” on college campuses, and accused them of fostering what he described as “race-think.” His nomination was later withdrawn after Sen. Tim Scott of South Carolina, the lone black Republican in the Senate, and others, announced their opposition to Bounds’ nomination.

If confirmed, Rao would become the second Trump administration official—after Katsas—to join the D.C. Circuit. She’d join a long list of former Justice Clarence Thomas clerks, including Katsas, nominated by Trump to the federal bench.

Rao clerked for Thomas from 2001 to 2002, following a clerkship with Judge J. Harvie Wilkinson III on the Fourth Circuit from 1999 to 2000. Between her clerkships, she was counsel to the Senate judiciary panel.

She also served as an associate counsel at the George W. Bush White House from 2005 to 2006. She said Tuesday her role involved overseeing legal issues for agencies and working on judicial nominations.

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