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Trump-appointed judge playing defense on presidential powers

Neomi Rao fulfilled predictions of Democratic critics and Republican supporters

Democrats saw warning signs long before President Donald Trump nominated Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit.

At the time, she was a White House lawyer who zealously defended Trump’s agenda. She’d clerked for Supreme Court Justice Clarence Thomas. But she had no experience as a judge and little trial experience. Her legal writings promoted broad powers for the presidency. And as a college student she’d taken positions on social issues that were anathema to many liberals and even some conservatives. 

That same background made her an ideal candidate for Trump and many conservatives. They see the appointment of federal judges who can pass their litmus test on social issues — and champion deregulation — as a way to circumvent legislative gridlock in Congress and counter the influence of liberal jurists. Loyalty to Trump seals the deal.

Less than a year after taking a seat on what is widely viewed as the second-most powerful court in the land, Rao has favored Trump’s position in dissents in two high-profile cases testing the power of the presidency. Just last week, she pushed back on a ruling that grand jury information referenced in Robert S. Mueller III’s report on Russian interference in the 2016 election must be shared with the House Judiciary Committee.

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Her dissents highlighted critics’ concerns that she is willing to give presidents too much power — and, more broadly, that she is among a growing number of federal judges who likely would not have survived the confirmation process in the past.

 “She believes the president can’t be held accountable while in office, can overrule the independence of agencies, and that he is free to ignore laws and Supreme Court decisions,” said Daniel Goldberg, legal director for the Alliance for Justice. His advocacy group states it promotes progressive values.

With Rao, critics say, Trump found what he was looking for in a judge.

“Judge Neomi Rao has served less than a year of her lifetime appointment to the D.C. Circuit, and I fear the damage she will do if she keeps putting politics and her allegiance to this president above the law,” Democratic Sen. Patrick Leahy of Vermont said in a statement.

During her confirmation hearing, Rao told lawmakers that she would decide whether or not she would be involved in litigation involving her former boss at the White House on a case-by-case basis.

She disagreed with two other judges on the three-judge panel who ruled in the case last week involving the Mueller grand jury evidence, one of whom was appointed by President George W. Bush.

And in an October opinion, Rao, who went straight from a White House job to the D.C. Circuit, disagreed when two of her colleagues concluded that the House Oversight and Reform Committee had the authority to issue a subpoena for financial documents “concerning the President and his companies.”

In her dissent, Rao wrote that “allegations that an impeachable official acted unlawfully must be pursued through impeachment.” Allowing the committee to issue the subpoena, she said, could turn Congress “into a roving inquisition over a co-equal branch of government.”

Thomas Jipping, a senior legal fellow at the conservative Heritage Foundation, disputes critics’ characterization of Rao. Rather than a partisan player or a Trump loyalist, he sees the judge as a strict constructionist who is applying the law according to her consistent, albeit conservative, legal views.

“Judge Rao’s expressed views about the separation of powers and executive authority are no more extreme than those of America’s founders,” Jipping said in an email.

Broad powers?

Rao telegraphed her support of broad powers for the presidency before she started down the path that first took her to the White House and then to a seat on the appeals court.

Rao’s writings in legal journals revealed her belief that a president should have broad powers to fire the “principal officers” in the executive branch.

She wrote in a 2014 Alabama Law Review article that a president should be able to remove “all principal executive branch officers, including the heads of the so-called independent agencies.” The article focused a great deal on the Consumer Financial Protection Bureau, the brainchild of Sen. Elizabeth Warren, D-Mass., and a target of Trump’s ire. 

Rao raised questions about “the constitutionality of this ‘independent bureau’” and argued for a president’s “unfettered” ability to remove “principal executive branch officers.” 

“The person that controls removal commands the subordinate’s loyalty — a simple truth of administration that an officer will seek to please the person that decides whether the officer stays or goes,” Rao wrote. That, she said, “allows the President to execute the laws as the Chief Administrator.”

(The Supreme Court heard arguments earlier this month in a case that may decide the constitutionality of the CFPB’s structure and how much authority a president has to fire its director.)

[Cruz, Cornyn, Graham raked in contributions from nominees they backed]

Rao also wrote in a 2009 Willamette Law Review article about the scope of a president’s powers and mentioned her experiences in the Bush White House.

She acknowledged that the executive branch “virtually always enforces the judgments of the Supreme Court and treats judicial precedent as binding.” But she also asserted “this court-centered perspective” created problems. 

“The President has powerful tools with which to defend his considerable sphere of action against Congress and the Court,” she wrote. “Although enforcement of statutes and adherence to Supreme Court precedent is the ordinary course, the President retains the power to act against the constitutional judgments of the other branches.”

Rao claimed a president “may ignore Supreme Court decisions as precedent.” The powers granted to a president by the Constitution, she said, “would hardly be consistent with the view that the President should always (or even mostly) defer to the Court or Congress in its constitutional judgments.”

Before he became Trump’s attorney general in February 2019, William Barr’s writings also supported broad powers for a president — and specifically Trump. Barr’s attorneys are currently representing the president’s interests in the case involving the Mueller investigation. 

Barr wrote an op-ed in The Washington Post in May 2017 defending Trump’s firing of FBI Director James B. Comey.

And in a lengthy memo he sent to the Justice Department in June 2018, Barr asserted that Trump was “exercising one of his core authorities under the Constitution” by removing Comey and had “‘illimitable’ discretion to remove principal officers carrying out his Executive functions.”

U.S. Attorney General William Barr, left, greets Supreme Court Chief Justice John G. Roberts Jr. as he arrives for President Donald Trump’s State of the Union address at the Capitol on Feb. 4, 2020. As was the case for Rao before her nomination, Barr’s writings before he became attorney general also supported broad powers for a president. Leah Millis/Reuters pool file photo

Serving the president

Like Barr, who also served as attorney general during President George H.W. Bush’s administration, Rao also had served in government before she joined the Trump administration. 

That included stints as an associate White House counsel and special assistant to President George W. Bush, on the Senate Judiciary Committee staff and as a law clerk for Thomas. 

Before Trump nominated Rao to the federal bench, she oversaw the Office of Information and Regulatory Affairs, which helps oversee the process for making and rescinding agency rules. She came in as a vocal advocate for cutting back what she has called the “excessive regulation” of the Obama administration. 

That was in line with Trump’s priorities outlined in his February 2017 executive order requiring agencies to repeal two regulations for every major new regulation they introduced.

After Trump nominated her for the circuit court, Republican Sen. Charles E. Grassley of Iowa told conservative radio host Hugh Hewitt that having an expert in federal regulations like Rao on the D.C. Circuit would keep the agency bureaucrats who write and enforce them from overstepping their roles.

“That’s very, very important if you want to get at the deep state,” Grassley said.

One of Rao’s controversial moves was to help Education Secretary Betsy DeVos revoke Obama-era guidance to colleges and universities on their obligations to investigate accusations of sexual assault in September 2017.

Critics of Obama’s policy say it was one-sided, gave accusers the benefit of the doubt while failing to protect due process for the accused and failed to follow the lengthy federal rule-making process.

Victims’ rights advocates accused the Trump administration of rolling back policies that were necessary to ensure women would feel comfortable coming forward after experiencing sexual violence on their campuses.

In a floor speech before Rao’s confirmation, Democratic Sen. Richard Blumenthal of Connecticut tied those policy changes to an op-ed that Rao wrote for The Yale Herald in October 1994, when she was an undergraduate. The column questioned a recent allegation of date rape on Yale’s campus.

“And if [a woman] drinks to the point where she can no longer choose [whether or not to have sex], well, getting to that point was part of her choice,” Rao wrote at the time.

Asked about the article at her Senate confirmation hearing, Rao explained that she was trying to make the point that “excessive drinking can lead to risky and dangerous behavior for both men and women.”

She also cautioned senators against cherry-picking her college writings. She said the quotes they pulled were not “a full representation of all of the many columns I wrote while I was at Yale.”

Rao disavowed the date rape article after her confirmation hearing. But Blumenthal dismissed that as a case of changing her views for the benefit of senators considering her nomination — “confirmation conversion.”

Battle lines

The controversy over Rao’s Yale op-ed was just one of many flashpoints during her confirmation hearing before the Senate Judiciary Committee. 

Sen. Mike Lee, R-Utah, introduced Rao as a “distinguished scholar and prominent attorney.” He said her career focus on administrative law was “excellent preparation” for a D.C. Circuit Court judge. The court has a complex docket, he said, and “it’s vitally important to the development of administrative law in our system.” 

Lee also praised her service as counsel for the Judiciary Committee and her time clerking for two federal court judges, including Thomas.

Democratic senators challenged whether that experience was enough. Leahy pointed out she had never tried a case to verdict in federal or state court — “zero percent of your practice has been a lawyer in federal courts.”

The former prosecutor said he would have assumed that “judges, no matter who appointed them …  had some idea of what the courtroom was like.”

Sen. Thom Tillis, R-N.C., countered that Rao’s background wasn’t so different from that of Supreme Court Justice Elena Kagan, whose nomination received bipartisan support. Kagan clerked for a Supreme Court judge and worked in academia. She later served as associate counsel to the Clinton administration. However, unlike Rao, Kagan did spend a year as U.S. solicitor general representing the Obama administration in federal court before she was nominated to the Supreme Court in 2010.

Other senators doubted whether Rao would recuse herself in cases involving Trump’s White House since her prior work there might create conflicts of interest. Sen. Dianne Feinstein, D-Calif., asked Rao if she would commit to recusing herself “from all cases involving the Trump administration’s regulatory actions.”

Rao responded that she “would look carefully at the statutory standards for recusal” and “would consult with my colleagues and follow the precedents and practices on the D.C. Circuit.” 

Rao repeated variations of this response over the course of the hearing. But she never committed to a blanket recusal, even when Feinstein later asked directly whether she would remove herself from cases involving “something that you worked on as an executive in this administration.”

“With all the mumbo jumbo that you answered the question with … the question is, will you recuse yourself? And you will not say yes,” Feinstein said.

“I have not said yes, I will not say no, it’s something that I’ll consider in each case as it comes,” Rao said.

Blumenthal dug into Rao’s past statements on executive power, raising comments she made on Hewitt’s talk show in December 2017. Hewitt asked how much control the president should have over special counsels appointed by the attorney general.

“The president can direct them how to act, can he not?” Hewitt asked.

“That is certainly true,” said Rao, who was overseeing OIRA at the time. “Article II of the Constitution vests all executive power in the president.”

But during Rao’s hearing, when Blumenthal asked Rao whether she believed the president had the right to fire Mueller, or to direct the attorney general to do so, Rao refused to answer, claiming the subject is part of an active political debate.

Blumenthal then pointed to what she had said on the Hewitt show.

“In light of your past comments, would you recuse yourself from that question if it came before your court, since you’ve already expressed your views on it?” he said.

“Senator, I am not sure that I have expressed my views on that subject, respectfully,” she said, adding that she would take consideration of recusal seriously.

The committee reported Rao’s nomination favorably by a 12-10 vote along party lines. Her 53-46 confirmation vote broke along party lines as well.

Rao arrives for her confirmation hearing before the Senate Judiciary Committee on Feb. 5, 2019. The committee reported her nomination to the U.S. Court of Appeals for the D.C. Circuit favorably by a 12-10 vote, and she was confirmed 53-46 in the Senate. (Bill Clark/CQ Roll Call file photo)

The new breed

Just eight years ago, Rao’s nomination might not have gotten out of the Senate. That was before then-Senate Majority Leader Harry Reid, D-Nev., invoked the “nuclear option” that allowed most judicial nominees to be confirmed by a simple majority instead of a three-fifths majority.

Republicans have complained about liberal justices in the past, and Democrats have complained about conservative ones. But there was a time when presidential administrations often made an effort to find nominees palatable to a significant number of lawmakers on both sides of the aisle.

Republicans warned there would be a reckoning for Reid’s decision. And that may be playing out as judicial nominees with strong ideological and political slants can be pushed through the Senate without any support from Democrats.

Experts say that could impact court rulings on important issues. And that may already be happening.

But they also warn that there could be a reckoning for Republicans the next time Democrats control the Senate. 

Gabe Roth, executive director of the nonpartisan advocacy group Fix the Court, didn’t have hard numbers to quantify the polarization that’s already well underway. But it’s palpable, he said in an email.

“Anecdotally, it does feel as if the judiciary is ruling between the 40 yard lines less frequently.”

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