Senate Republicans this week renew their push to confirm conservative federal judges, including a nominee for a key appeals court who could evoke the contentiousness of last year’s all-out battle over Justice Brett M. Kavanaugh.
The Senate Judiciary Committee’s first confirmation hearing of the year Tuesday features Neomi Rao, nominated to the seat on the U.S. Court of Appeals for the District of Columbia Circuit left open when Kavanaugh moved to the Supreme Court.
Rao’s pick has drawn criticism from liberal advocacy groups that, among other complaints about her lack of experience in federal courts and legal views on affirmative action, health care and climate change, point to articles she wrote in college in the 1990s that they say blame victims of sexual assault for drinking too much.
On the same topic as concerns about Rao, Kavanaugh’s appointment famously went sideways last year when Christine Blasey Ford accused him of sexually attacking her during a high school party decades ago, a connection not likely to be lost to committee Democrats when she testifies. The Senate voted 50-48 to confirm him.
Adding to the importance, Rao, if confirmed to a court that has been a stepping stone to the Supreme Court for four current justices, could be in the conversation as a potential Supreme Court pick if another vacancy opens during Donald Trump’s presidency.
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The hearing comes the same week that the committee is set to vote on dozens of Trump’s previous judicial nominations that must restart the process in the new Congress. And the committee process for picks for California’s federal courts are moving ahead over the objections of its two Democratic senators, Dianne Feinstein and Kamala Harris.
The hearing for the D.C. Circuit is a contentious one to start with for new Chairman Lindsey Graham of South Carolina, who vigorously criticized committee Democrats during the Kavanaugh process and announced the confirmation of “highly qualified conservative judges” as one of his priorities.
The D.C. Circuit is sometimes referred to as the second-highest court in the country because it decides many regulatory issues that have a nationwide scope, such as education, the environment and health care. It currently has a majority of Democrat-appointed judges.
That court was in the center of confirmation drama in 2013, when Republicans blocked three of President Barack Obama’s picks to fill vacancies, and Democrats changed Senate rules to confirm them. That change means Rao only needs a majority to win confirmation in the Senate, where Republicans hold a 53-47 advantage.
Rao currently heads the Office of Information and Regulatory Affairs, part of the Office of Management and Budget in the White House, which plays a key role in the Trump administration’s efforts to roll back regulations. A former clerk of Justice Clarence Thomas, she is on leave as the director and founder of the Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University.
FreedomWorks, a hard-line conservative advocacy group, cheered her pick in November, saying she was someone who could rein in the excesses of the administrative state as she had in the White House.
“Now she has the opportunity to do so from the bench and set precedents that cannot be easily undone by future administrations,” Adam Brandon, the group’s president, said at the time.
Judiciary Democrats have plenty of topics to grill Rao about Tuesday. Democratic advocacy groups such as Alliance For Justice say Rao is a conservative ideologue, pointing to her actions in the administration that include weakening housing discrimination protections based on race, rescinding the Clean Power Plan and restricting protections for sexual assault survivors on college campuses through a proposed rule change.
Rao has also criticized Supreme Court rulings that upheld the 2010 health care overhaul.
And Democrats could ask the nominee about her writings from the 1990s, such as a 1994 article in The Yale Herald that argues that a man who rapes a “drunk girl” should be prosecuted but that Democrats say also blames the victim. “At the same time, a good way to avoid a potential date rape is to stay sober,” Rao wrote.
And she wrote in 1993: “Although I am certainly not arguing that date rape victims ask for it, when playing the modern dating game women have to understand and accept the consequences of their sexuality.”
“Neomi Rao’s supporters like to say that some of her writings on sexual assault, LGBTQ rights, and racial justice are irrelevant because she wrote them in her twenties,” Alliance for Justice President Nan Aron said. “But Rao’s work today shows there has been no evolution or maturing of her narrow-minded views.”
In an unusual twist, the Little People of America wrote the Judiciary Committee last year in opposition to Rao’s nomination because she supported, in the Notre Dame Law Review, the overturning of the banned practice of dwarf tossing, arguing that some of the people being tossed may choose to earn a living that way.
In early 2012, a dwarf was tossed against his will in a pub and sustained a spinal cord injury, the group’s leaders wrote, and a public figure with judicial authority “could influence the perpetuation of negative cultural stereotypes and hold the potential to permit serious bodily injury to members of the dwarfism community.”