The nomination of Neomi Rao for a seat on the powerful U.S. Court of Appeals for the D.C. Circuit advanced Thursday to the full U.S. Senate, following several days of new scrutiny of her stance on abortion.
Rao has been largely viewed as a lock for a seat on the D.C. Circuit, succeeding now-Justice Brett Kavanaugh on a court teeming with disputes that fall squarely in her wheelhouse: administrative and regulatory issues. Rao now leads the White House Office of Information and Regulatory Affairs, a central office in the Trump administration’s deregulatory push.
The Senate Judiciary Committee voted 12-10 along party lines to advance Rao’s nomination to the Senate floor.
Rao’s nomination hit a snag days ago when one member of the committee, Sen. Josh Hawley, the Missouri Republican and a former clerk to Chief Justice John Roberts Jr., suggested he could not vote for Rao if she were pro-choice.
Hawley, writing at the conservative site The Federalist, said on Wednesday: “As someone who believes deeply in the right to life and the equal dignity of every person, including the unborn, confirming judges who will resist the siren song of judicial lawmaking is especially important.” Hawley declared: “I’m not going to let other people, and certainly not the Washington establishment, do my thinking for me.”
But Hawley said Thursday he was persuaded to advance Rao’s nomination after meeting with her again. Rao, according to Hawley, said she believed the text of the Constitution is fixed and its meaning must follow that text, and she said the concept of dignity does not justify departing from the Constitution’s text. The concept of individual dignity was central to Justice Anthony Kennedy’s decisions upholding the rights to an abortion and same-sex marriage.
The Washington Post reported this week that Sen. Tom Cotton, R-Arkansas, was also questioning Rao’s nomination. Republicans hold a 53-47 majority in the Senate.
Conservatives in Washington have defended Rao’s credentials and qualifications, saying she is a strong fit on the D.C. Circuit. Rao is a former clerk to Justice Clarence Thomas, and was the founder of the Center for the Study of the Administrative State at the Antonin Scalia Law School.
Rao’s nomination earlier came under fire for a column she wrote in college on campus sexual assault and date rape. In a 1994 article titled “Shades of Gray,” Rao, then a Yale undergraduate, said: “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 apologized in a Feb. 11 letter she sent to Sens. Lindsey Graham, R-South Carolina, and Dianne Feinstein, D-California, saying her column was “insensitive.” Graham is chairman of the Judiciary Committee and Feinstein is the ranking Democrat.
“Sexual assault in all forms, including date rape, is abhorrent,” Rao wrote. “Responsibility for the rape is with the rapist. I believed that as a college student and continue to believe that today.”
Thursday’s vote comes after the confirmation this week of Perkins Coie partner Eric Miller for a Seattle-based seat on the Ninth Circuit. Miller was confirmed despite the fact his two home state senators in Washington had not consented to his nomination.
“This is wrong. It is a dangerous road for the Senate to go down,” Sen. Patty Murray, D-Washington, said in remarks on the Senate floor. “Confirming this Ninth Circuit court nominee without the consent or true input of both home state senators, and after a sham hearing, would be a dangerous first for this Senate.”
Two other federal appeals nominees—Michael Park and Joseph Bianco, both picked for the Second Circuit—were up for a vote Thursday but the committee held them over until next week. Park is a name attorney at the litigation boutique Consovoy McCarthy Park, and is a leading attorney in the suit challenging Harvard’s undergraduate admissions practices. Bianco is a federal trial judge in the Eastern District of New York.
Trump has confirmed more federal appeals court judges—31 as of this week—than at any point in a president’s first two years in office.
Marcia Coyle contributed reporting from Washington.