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Appeals court nominee backpedals from college writings

“I cringe at some of the language I used,” Neomi Rao tells Senate Judiciary

Neomi Rao, nominated for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, arrives for her confirmation hearing before the Senate Judiciary Committee on Tuesday. (Bill Clark/CQ Roll Call)
Neomi Rao, nominated for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, arrives for her confirmation hearing before the Senate Judiciary Committee on Tuesday. (Bill Clark/CQ Roll Call)

President Donald Trump’s pick for an influential appeals court distanced herself Tuesday from prior writings about sexual assault and other topics during a Senate Judiciary confirmation hearing.

“To be honest, looking back at some of those writings and reading them, I cringe at some of the language I used,” Neomi Rao, a nominee for the U.S. Court of Appeals for the District of Columbia, testified. “In the intervening two decades, I like to think that I have matured as a thinker and writer, and indeed as a person.”

Committee members quizzed Rao for more than two hours about her views about issues that could come before the D.C. Circuit, which decides many regulatory cases that have a nationwide scope, such as education, the environment and health care.

Rao backed away from her college writings on climate change under questioning from Vermont Democrat Patrick J. Leahy, saying she made the argument that it “was nothing more than a major environmental boogeyman” decades ago when there was a more vigorous debate.

“I think the science has become much more conclusive over time,” Rao said. “My understanding is that human activity does contribute to climate change, yes.”

And California Sen. Dianne Feinstein, the panel’s ranking Democrat, expressed concern that Rao — who currently plays a key role in the White House’s efforts to roll back federal regulations — several times stopped short of committing to recuse herself from deciding cases about Trump administration regulatory actions that she worked on.

Another nominee for the same court who had worked for the White House had committed to doing so, Feinstein said. Feinstein was presumably referring to Greg Katsas, who worked for the Trump administration before being appointed to the D.C. Circuit in December 2017.

But committee members repeatedly returned to Rao’s college articles from the 1990s — such as one that said that a good way for a woman “to avoid a potential date rape is to stay sober.” Rao explained Tuesday that the wording was “not the most elegant” but was “the advice my mother gave me, it’s the advice that I give my children, and I certainly regret any implication of blaming the victim.”

A dramatic moment came when Iowa Republican Joni Ernst, who last month revealed that she was raped in college, said Rao’s writings “do give me pause” and not just from the senator’s own personal experiences, “but regarding a message we are sending young women everywhere.”

Among other questions, Ernst asked why Rao wrote in college that another author accurately described the “dangerous feminist idealism which teaches women that they are equal. Women believe falsely that they should be able to go anywhere with anyone.”

“Is that a dangerous feminist ideal, is that women are created equal?” Ernst said.

“I very much regret that statement, and I’ve always believed strongly in the equality of women and men and for equal rights and opportunities for women,” Rao said. “I’m honestly not sure why I wrote that in college.”

Delaware Democrat Chris Coons said he would agree with Rao’s characterization of those old writings, which “are at the very least cringe worthy,” but focused his questions on more recent writings that advocated great authority for the president.

Minnesota Democrat Amy Klobucha pressed Rao on her writing that the independent Consumer Financial Protection Bureau was unconstitutional if the president could not fire its director.

Rao currently heads the Office of Information and Regulatory Affairs, part of the Office of Management and Budget in the White House. 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. Rao has never been a judge.

Utah GOP Sen. Mike Lee said confirmation hearings had turned into a “blood bath” that includes delving into the distant past to find reasons to attack nominees. “People grow, they learn, we should allow those changes to be taken into account,” Lee said. “There’s certainly nothing disqualifying here.”

And Louisiana Republican John Kennedy said the question for nominees shouldn’t be their previous views but how they will set aside those views to rule on the law.

“I don’t want a nominee that’s never thought about the world,” Kennedy said. “I prefer to have a nominee that has an intellect above a single-cell organism, that doesn’t come in here as a blank slate.”

And then there was the topic of dwarf tossing, which Rao wrote about in a Notre Dame Law Review article.

Under questioning from Hawaii Democratic Sen. Mazie K. Hirono, Rao responded that she wrote an article about a town in France making dwarf tossing illegal and the different conceptions of dignity. And she said an individual dwarf made a living participating in tossing and claimed the ban affected his “dignitary interests.”

“But in my article, I don’t take a position one way or the other on these issues, I’m just pointing out …” Rao said, when Hirono interrupted her.

“I think your article has been interpreted as you were OK with dwarf tossing,” Hirono said. “This is one of the reasons why an organization that supports their issues is very much against your nomination.”

The Little People of America wrote the Judiciary Committee last year in opposition to Rao’s nomination because they said she supported the overturning of the banned practice of dwarf tossing.

A committee vote on Rao’s nomination has not been set. Rao only needs a majority to win confirmation in the Senate, where Republicans hold a 53-47 advantage.

Also watch: A missing bathroom door, the third kick of the mule and Movin’ On Up (in Hart) — Congressional Hits and Misses

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