Neomi Rao Under Fire

Senate Democrats and progressive groups launch unfounded attacks against a judicial nominee.

|The Volokh Conspiracy |

This morning, the Senate Judiciary Committee is scheduled to hold a hearing on the nomination of Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. Rao is currently the Administrator for the Office of Information and Regulatory Affairs (OIRA) and has been nominated to fill the vacancy created by Justice Brett Kavanaugh's elevation to the Supreme Court and (for reasons I explained here) is an excellent choice for this seat.

In today's hearing, Rao is likely to face tough questioning and strong opposition from Senate Democrats. Progressive groups, "still seething over the confirmation of Kavanaugh," have launched a barrage of unjustified and unfounded attacks on Rao. Although many of these groups have complained about the lack of diversity of the Trump Administration's judicial picks (with reason), they have no interest in seeing an exceptionally intelligent woman of color confirmed to what is often characterized as the "second highest court" in the country.

Some groups have sought to claim Rao is unqualified because she was never a litigator. This is a silly charge. Rao's experience as OIRA Administrator makes her "uniquely qualified" for this seat, as Ohio State law professor Chris Walker explains at Notice & Comment. Rao has more relevant experience to serve on the D.C. Circuit than did Elena Kagan when President Clinton first nominated her that court in 1999. At the time, Senator Pat Leahy (D_VT), the ranking minority member on the Senate Judiciary Committee called Kagan an "outstanding" and "highly qualified" nominee. Leahy was right, and Rao is no less qualified. Indeed, the American Bar Association agrees.

Rao's academic writings are serious and formidable. Her work discussing how excessive delegation of power to the executive branch undermines political accountability is insightful and particularly relevant today as the President threatens to use the such power to declare a "national emergency" in order to build a border wall. As Fred Barbash explained in the Washington Post, Rao's "brilliant article" on delegation shows why most alleged executive excesses are facilitated by Congress. Yet rather than engage the substance of her academic work, Rao's critics resort to caricatures and smears, such as by characterizing her work on the role of dignity in constitutional law as advocating "dwarf tossing" while ignoring her emphasis on autonomy and consent.

Desperate to find dirt on Rao, some groups have seized on opinion pieces she wrote over twenty years ago as a college student, as if the scribblings of a twenty-year-old tell us much about how someone will behave as a judge in the 40s and 50s. Obsessive focus on college writings is absurd, but it's par for the course in judicial nominations these days.

In Rao's case, groups are distorting and misrepresenting her views in an effort to paint her as extreme. Some are even claiming that nuanced, thoughtful op-eds discussing feminism and a date rape controversy at Yale (where she was an undergraduate) suggest she blames rape victims for their plight. These attacks distort her writings and, as KC Johnson explains, implicitly reject the broad consensus among judges in Title IX cases that men and women must be held to the same standards of responsibility and behavior. It's sad but true that people are more vulnerable to sexual assault if they drink too much alcohol. Noting that fact, particularly while emphasizing that no amount of inebriation can excuse sexual assault, hardly constitutes "blaming the victim."

Rao is an accomplished lawyer and administrative law expert—just the sort of person who should sit on the D.C. Circuit. Nominations like hers are among the (very) few bright spots of this administration. I hope the Senate will agree.

NEXT: Moooving on From NAFTA

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  1. In a decade or so we’ll have nominees who grew up posting every thought they’ve ever had, and 20 pictures a day, on social media. Won’t those hearings be fun.

    1. Also in 20 years: “The Republicans nominated somekne without social media! What is wrong with him? Nope!”

  2. The substance of the ‘attacks” appears to mostly be that she’s not the sort of judge a Democrat would have nominated. Which shouldn’t be an effective attack when the Senate has a Republican majority.

    But it still would have been nice to have seen what sort of opinion pieces we’re talking about. Twenty years isn’t THAT long ago.

    1. Your argument would make more sense if it wasn’t a Republican senator (Ernst from Iowa) pressing Rao about her writings.

      1. Yeah, there are Republican Senators who would be concerned about a judge not being the sort a Democrat would have nominated. Fewer now than last year, thankfully.

  3. First, they weren’t “scribblings;” they were posted articles.

    “The multiculturalists are not simply after political reform,” she wrote.

    “Underneath their touchy-feely talk of tolerance, they seek to undermine American culture,” she continued, adding “They argue that culture, society and politics have been defined ?and presumably defiled ? by white, male heterosexuals hostile to their way of life.”

    “For example, homosexuals want to redefine marriage and parenthood; feminists in women’s studies programs want to replace so-called male rationality with more sensitive responses common to womyn (sic).”

    I’d rather think all of us (both those who agree and those who disagree with these 1994 statements) would like to hear her current opinions.

    1. Yes, “scribblings” was a bit much. It might be reasonable to so describe something she’d written in elementary school, but not at the age of 20.

      OTOH, reading the “scribblings”, I see that it’s just more of the Democrats complaining that she’s not the sort of judge they’d have nominated. I don’t see anything remotely disqualifying there.

    2. Still trying to see where she was wrong in those articles…..

      1. Let’s not focus on “wrong” when “backward” and “intolerant” are available.

        1. But if being “backwards” and “intolerant” were “right”, being backwards an intolerant would be a good thing. So, for any rational person, “right” and “wrong” are doing all the work.

          1. I do not understand your point. Some people regard backwardness and bigotry as good. Do you believe the backward and intolerant are trying to do what they perceive to be the wrong thing, that they are mistaken about whether their work promotes backwardness and intolerance, or that they are in some other way not trying to promote backwardness and intolerance?

            1. I’m probably going to regret explaining this to you, but I have to try.

              Look, there are things you should tolerate, and things you shouldn’t. So, being “intolerant” is not an unalloyed evil, and being “tolerant” is not an unalloyed good; Whether it’s a virtue or not is contingent on the nature of the thing it is proposed to tolerate. Should the abolitionists have tolerated slavery, for instance?

              Similarly, being “backwards” simply means preferring a previous state to an emerging state. But unless you take the position that change is always for the better, (Which is remarkably stupid in principle, and historically ignorant in practice.) again, being “backwards” may be a virtue or not, dependent on what one is being “backwards” in regards to.

              “Wrong” is doing all the work here, because until you know whether a particular position is right or wrong, you don’t know whether it being backwards and intolerant is a bad thing or a good thing.

              So, I don’t care if she was “backwards” and “intolerant”, I care if she was “right” or “wrong”.

              1. Do you believe those who advocated and eventually arranged decent treatment of gays — and ending bigoted treatment of gays — in America were undermining our culture?

                Were they right or wrong?

                1. I believe it is quite clear that those who advocated for more favorable treatment of homosexuals (It goes rather beyond “decent”.) were set on undermining our culture, in as much as that culture was not favorable to their aims.

                  In some small ways the changes to our culture might have been improvements, in some major ways they were very detrimental. For instance the intense sexualization of entertainment, or the epidemic of Munchausen by proxy teen transgenderism.

                  Anyway, do you understand my point, that “backwards” and “intolerant” are nothing any rational person should care about? That we should rather care about whether they’re right or wrong?

                2. What’s a “gay?”

            2. If believing that a nuclear traditional family is better for children and society than two gay men having b*ttsex while the children they purchased from a surrogate are trying to sleep over all of the moaning of their “fathers” is backward, then count me as backward.

              1. trying to sleep over all of the moaning of their “fathers”

                trying to sleep over all of the moaning

                all of the moaning
                all of the moaning
                all of the moaning
                all of the moaning
                all of the moaning
                all of the moaning
                all of the moaning

            3. But you do understand that everyone thinks you’re a malignant, socially retarded twat who should kill himself, correct?

            4. do not understand your point

              A common lament from Arthur L. Hicklib.

        2. Here the Rev is speaking of what he knows

          1. Commie Kirkland is a turd burglar. That one fact is what drives every facet of his world-view and his cut and paste talking points.

            1. You guys still wondering why my preferences have been shaping America for a half-century or more, why people like me are the mainstream in America, or why faux libertarians are fringe players in American politics?

              1. Posts like this make me wonder if Arthur L Kirkland is not indeed a parody account.

        3. She’s a White Nationalist!

    3. Now try to finish reading the whole article and not minor excerpts.

    4. “Underneath their touchy-feely talk of tolerance, they seek to undermine American culture,” she continued, adding “They argue that culture, society and politics have been defined ?and presumably defiled ? by white, male heterosexuals hostile to their way of life.”

      A) FWIW – progressives are some of the most intolerant people – cant have an inpure thought

      “For example, homosexuals want to redefine marriage and parenthood”

      B) The anti-gay marriage was overwhelming view, even among democrats 20 years ago – remember the Clintons

    5. I’d rather think all of us (both those who agree and those who disagree with these 1994 statements) would like to hear her current opinions.

      Why? She’s not running for office.

      1. Because that ship sailed so long ago to argue that Rao’s views don’t matter is basically special pleading at this point.

        I fully believe she’s probably moderated her views since her 20s. But I’d like to at least put it to the question.

        1. Why woudl you think that? As recently as 2013 she was writing articles (for the Volokh Conspiracy, no less) arguing that Kennedy was still ruling wrong on gay-rights cases. This was after her 2008 article on how Lawrence v. Texas was wrongly decided.

          1. It’s less that I’m worried she’s anti-gay, more how she rationalizes it.

            Certainly with respect to trans rights etc, it’s suboptimal. But gay marriage is here to stay, but as my 2.5.19 @ 1:13PM comment said, it’s the culture warrior aspect that has a more general impact, and which I hope has moderated.

            1. So to the question of “why would you think that?”, your answer is just “hope”? No actual reason, just hope?

              With apologies to Princess Leia, I don’t think relying on hope is a very wise course of action.

              1. Heh. Agreed. Hence ‘I’d like to at least put it to the question.’

              2. Apologize to Barack Obama, too.

    6. Which of those statements was wrong?

  4. by characterizing her work on the role of dignity in constitutional law as advocating “dwarf tossing”

    This is that idiotic Austrailian decision where a patronizing judge took it on himself to tell dwarfs that only he knew what was dignified for them, and enforced it at the point of a gun, telling them he didn’t permit them to be tossed at bars as part of their business. “I am the one who says what is dignified for you,” he said as he bottled them up and kept them in his pocket, controlling their freedom.

    You cannot allow reasons like this as “protecting dignity” is one of the primary rationalizations of dictators.

    1. You’ve explained modern liberalism quite well.

  5. Senate Democrats and progressive groups launch unfounded attacks against a judicial nominee.

    See how I copied and pasted that?

    You should probably do the same. Will save some time for the next few years.

  6. Do you believe that seeking decent treatment for gays ‘undermines our culture,’ Prof. Adler? I strongly doubt that you do.

    Prof. Rao does, or wrote that she did, however, and it seems reasonable to provide an opportunity for those evaluating her nomination to understand what she believes, and believed, along that line. People can change, but inferring change without evidence seems odd.

    1. Here’s the essay in question. She nowhere says that seeking decent treatment for ‘gays’ undermines our culture. Actually, the essay mostly discussed the idea that one’s political views should be dictated by one’s sexual identity.

      1. Thanks for the link. Where she makes a mistake is that some homosexuality to some undetermined extent is innate. There’s no good biological or evolutionary explanation (good as in supported by evidence) for male homosexuality either. Given the state of science at the time, it’s an understandable position to take that it’s a behavior, especially as it is an ancient understanding. For example, Plato thought that it was disordered because it was giving into lust (in an era before contraceptives) without the reproductive consequences.

        1. “There’s no good biological or evolutionary explanation (good as in supported by evidence) for male homosexuality either.”

          As a general matter, it isn’t dysfunction that requires an evolutionary explanation; Entropy breaks all things down. It’s function. All you need to explain the existence of a fairly low frequency of homosexuality, (It’s in the low single digits.) is to observe that Darwinian selection isn’t 100% effective in the face of mutation.

          1. Humans are more than DNA — their behavior is also dictated by memes. In this case, we are dual, evolving streams of data.

            For thousands of years, the meme half of humans kept gay people mating and reproducing. That pressure is gone now.

            Nobody will live long enough to see if it evolves out, and within a hundred years the whole genome will be programmable and normal evolution will be over.

            As for “born that way”, it is sad people have to make that claim just to be free. It should be an academic question, not a political one. This is why some are opposed to it, because they are the ones demanding reasons to be free beyond simply wanting to be free.

            1. “For thousands of years, the meme half of humans kept gay people mating and reproducing. That pressure is gone now.”

              We don’t know if this is true. We do know that there are hunter-gatherer societies where not every adult member mates and reproduces, as is true in every culture, everywhere, throughout human history. It’s also true of primates, all mammals, etc.

          2. Always happy to note when Brett and I agree.

            (though I also think it may not be purely innate. Probably a varying amount of nature and nurture like most things).

            1. Agree with this.

              I am good friends with a lesbian couple who broke up. They were together for several years.

              One of them found another woman and is happily married to her now.

              The other found a man and is happily married to him now.

            2. I think the best way to look at it is that heterosexuality is innate, and departures from it represent failures of that innate mechanism.

              As failure is usually diverse in its origins and nature, so homosexuality will be diverse in its origins and nature. You’ll have people who got the innate settings for the opposing sex, and are pretty much stuck with being strictly homosexual. You’ll have people in whom the targeting mechanism is just a bit wonky, and they’ll either end up with targeting that’s dictated by life experiences, or indiscriminate, or targeted very inappropriately.

              And some of them will be able to be made functionally heterosexual by some kind of intervention, and some won’t.

              It’s really a mistake to think that homosexuality is one thing. Heterosexuality is one thing. Homosexuality is a collection of different things.

              1. Your entire paradigm is assuming evolution to be an optimizing path towards some ideal. It’s not – there is no ideal, just a threadhold. And not even a threshold at the individual level.

                Ascribing values to it is fundamentally misunderstanding how amoral nature is.

                Plus it’s missing the mark on how modern society interacts with nature.

                1. “Your entire paradigm is assuming evolution to be an optimizing path towards some ideal.”

                  Yeah, genes perpetuating themselves. Bog standard Darwinian evolution. It’s kind of like Newtonian physics vs relativity; There may be special cases that modify Darwinian evolution, but they’re special cases, Darwinian evolution explains almost everything outside of unusual situations.

                  Personally having children isn’t, of course, the only way to perpetuate your genes. Helping relatives perpetuate their genes, which you to some extent share with them, also accomplishes it. Just not as efficiently; The more distant the relationship, the more children you have to help reach reproduction themselves to equal one child of your own.

                  I’m pretty up on this, human biology was one of my majors in college, and I’ve followed it since.

                  This is pretty basic evolutionary biology: Most biological mechanisms have only a few really functional phenotypes, but there’s a huge variety of non-functional phenotypes, because the non-functional phenotypes aren’t constrained by the need to function.

                  So, the reasonable expectation is that heterosexuality is just one entity, but homosexuality is a collection of entities, which only have not being heterosexuality in common. There isn’t a “the cause of homosexuality”. There’s a large collection of causes, which we can presume are different in the details.

                  1. Evolution. Does. Not. Optimize. It’s a threshold determination, that’s it.
                    Hence why we have wisdom teeth, suboptimally designed backs and legs, prostates that will all eventually turn cancerous.

                    Darwinian evolution explains almost everything outside of unusual situations.
                    This sounds dangerously like social darwinism, which doesn’t have a great history. What about art, or philosophy, or booze?

                    The more distant the relationship, the more children you have to help reach reproduction themselves to equal one child of your own.
                    Collective natural selection is a thing (further degrading your connection between heterosexuality and evolution), but I don’t think you have this correct. This is an engineering square peg trying to get into a social science round hole. There’s not some fractional metric of your genetic individuality that’s being tracked through generations.

                    Your appeal to authority is fine, but what you say doesn’t track with what I’ve learned about how evolution works, and how evolutionary psychology operates these days.

                    Heterosexuality may itself have a bunch of causes as well. Heck, the process of determining maleness turns out to be a rather biologically complicated cascade of effects.

              2. Your entire paradigm is assuming evolution to be an optimizing path towards some ideal. It’s not – there is no ideal, just a threadhold. And not even a threshold at the individual level.

                Ascribing values to it is fundamentally misunderstanding how amoral nature is.

                Plus it’s missing the mark on how modern society interacts with nature.

                1. Your entire paradigm is assuming evolution to be an optimizing path towards some ideal. It’s not – there is no ideal, just a threadhold. And not even a threshold at the individual level.

                  No, he was simply explaining that the threshold is survival and successful reproduction. Inclusive fitness is obviously a thing, but when it does apply it applies mathematically precisely as Brett described. It’s practical application to the hymenoptera is well established, to humans not so much.

                  Ascribing values to it is fundamentally misunderstanding how amoral nature is.

                  Another misunderstanding. Successful reproduction is not a value, it’s a logically necessary condition for replication. Since evolution is an algorithm which describes differential replication, it discriminates between successful and unsuccessful replicators.

        2. “There’s no good biological or evolutionary explanation (good as in supported by evidence)…”

          There’s plenty of good biological or evolutionary explanation for non-reproductive organisms. It’s pretty simple to map situations where genetic code will proliferate more if some percentage of the population does not reproduce, and you can show that in fact their genes are better off, too. The biological evidence of this actually happening is overwhelming.

          1. And not every innate trait is driven by selection pressure.
            Evolution is a threshold process, not an optimizing one – once you’re gonna survive to reproduce, natural selection does not care what weirdness you got going on.

            1. Oh, bs. Once you’re going to survive to reproduce, natural selection continues to care the degree to which you do it, because more frequently passed on genes eventually dominate over less frequently passed on genes.

              Yeah, evolution doesn’t care how you accomplished it. But it cares how often you do. It’s not as binary as you’re making it out to be.

            2. “Evolution is a threshold process, not an optimizing one – once you’re gonna survive to reproduce, natural selection does not care what weirdness you got going on.”

              Evolution can be a threshold process, but not always and everywhere.

              So long as that weirdness does not adversely affect the reproductive efficacy of your offspring you could be correct. To the extent that your post reproductive behavior alters the reproduction of your offspring (all cause) you are wrong.

              1. To the extent that your post reproductive behavior alters the reproduction of your offspring (all cause) you are wrong.

                Um…ok. That’s pedantic, but correct. Which still means that it’s a threshold process, just with a marginally different threshold than I tossed off.

            3. Non-reproductivity in organisms is not some vestigial trait that survived in spite of selective pressures. It was actively selected for countless times. Why do worker ants not reproduce? Why do only male and female alpha wolves mate? It’s not “weirdness”, it’s fitness. Selection is not limited to the individual (phenotype).

              1. Non-reproductivity can be selected for, which does make Brett doubly wrong.

                But don’t essentialize selective pressure as determinative of behavior. Traits don’t survive despite selection pressure – selection pressure isn’t a steady optimizing force ever pushing species towards maximal survival.

            4. “And not every innate trait is driven by selection pressure.”

              It would be remarkable if a behavior (homosexuality) observed in every human culture and our closest biological relatives was not “driven by selection pressure”. In social mammals it’s quite common for genes to select for traits that are devastating to the reproductive success of an individual, so long as the trait improves the reproductive success of others (like nieces and nephews). Reproductive success and fitness are not the same thing. It’s possible for an organism to have very high reproductive success but no real lasting fitness.

              1. A bunch of frog species try and bang rocks that are about the same size. I don’t think that was selected for.

                1. Also male frogs will try to copulate with each other, when entangled in a ball of frogs trying to get to the one girl in the middle of the huddle.

                  The natural implication is that evolution designed a “poke whatever looks like it might be a female frog, as soon as you get any chance at all” rather than a more refined instinct. Presumably because gentleman frogs who hung back from the orgy reduced their chances of getting to be the guy who did the successful poking from 2% to 0%, and so left no descendants. We can see a similar effect in the New Year Sales.

                  Likewise insects can be fooled by flowers into false copulations.

                  Which implies that evolution is only operating on a “good enough for government work” basis. But that also implies that these inefficiences in mating behavior are not reducing the fitness of the creatures who engage in them enough to prevent their genes making it into the next generation.

                  1. evolution designed.
                    This is the misapprehension I’m talking about, though if it was just a tossed off inaccuracy I can’t really squawk considering my own style.

                    Presumably because gentleman frogs who hung back
                    Or because orgy-knots were good enough so there was no push to keep on innovating.

                    inefficiences in mating behavior are not reducing the fitness of the creatures who engage in them enough to prevent their genes making it into the next generation.
                    This sounds like threshold analysis to me.

                    1. moi : ..evolution designed..
                      sarcastro : This is the misapprehension I’m talking about, though if it was just a tossed off inaccuracy..

                      No, it’s just a dead metaphor, that has been in common use since Darwin’s day. Amongst those who do not understand the basics of the evolutionary algorithm it is, I concede, misleading. Amongst those who understand that it refers to the appearance of design, ie results analagous to those that might be expected from a conscious designer; the appearance arising from replication and non random survival of the copies – it saves a couple of paragraphs. Which is, of course, the traditional role of metaphor.

              2. In social mammals it’s quite common for genes to select for traits that are devastating to the reproductive success of an individual, so long as the trait improves the reproductive success of others (like nieces and nephews)

                No not really. Even in the hymenoptera, workers are usually kept from breeding by chemical tyranny. In creatures where only the alphas mate, the betas, gammas and deltas still have the hope of ascending in the hierarchy and taking a mating slot. A 5% chance of leaving descendants by biding your time beats a 0% chance of mating if you’re kicked out of the pack, or killed for insubordination.

                I don’t think it’s hard to see (some examples of) male human homosexuality as a behavioral response to low mate value as heterosexual males. Since heterosexual girls can be rather picky, and homosexual guys can be rather unpicky, taking what you can get may not be a bad plan.

                1. The analysis of group survival traits not being selectively favored is interesting. My sister is an entomologist, I’ll have to check with her about the state of play of this postulate.

                  This behavioral response, as you see it, has no evolutionary moment since it’s going from zero to zero?
                  So you would disagree with the above thesis about homosexuality being bad because it fails to sufficiently hew to natural selection’s mandate?

                  1. This behavioral response, as you see it, has no evolutionary moment since it’s going from zero to zero?

                    Who can say ? Humans seem to like close, inc sexual, relationships. If pursuing homosexual relationships when you can’t get a heterosexual one helps preserve your physiological and psychological well being so that you’re in better shape to take advantage of a heterosexual opportunity when one offers, then the behavior will be positive for your fitness. But if the behavior results in you wasting time and energy on homosexual relationships when you could have been pursuing heterosexual ones with some, even a low, chance of success, then it’s negative.

                    1. So you would disagree with the above thesis about homosexuality being bad because it fails to sufficiently hew to natural selection’s mandate?

                      “Bad” as in negative for fitness? No. Pursuing homosexual relationships in preference to heterosexual ones is obviously negative for fitness at a first order level. There may be second and third order effects which outweigh those negatives. And the more plastic behavior discussed above may be one of those higher order effects.

                      But, unlike for some social animals, there’s no evidence that in humans the second order effects outweigh the first order ones. But that doesn’t mean that none will ever be found. For the time being though the Occamist provisional conclusion is that homosexuality is negatve for fitness, but persists because it is a misfire that is performed afresh in each generation, whether genetically, environmentally, or by a mixture thereof.

                    2. When one considers evolutionary timescales – ie ignoring modern social mores and the pill – women have not had a lot of choice about whether to engage in heterosexual relationships. I don’t mean they were all ruthlessly raped all the time, but the economic structure of human society has not historically had a lot of room for spare females who don’t try to reproduce. Extra home care is more efficiently provided by grandmas and younger sisters, whose reproductive time has gone, and is yet to come, respectively. So being lesbian may not have been much of a block on female reproduction – because lesbians would have pair bonded with a man anyway, just to survive.

                      And for men – well male reproductive success is much more variable than female. Lots of men have finished up with a zero score on the offspring front. It’s not hard to believe that the small percentage of men who were gay by preference would have increased their chances of finishing up in that category. And so far as we can tell, super successful male reproducers achieved their success by being very alpha warlords. We have few records of major league megadads who achieved their success because of the backing they received from their five gay brothers.

      2. She nowhere says that seeking decent treatment for ‘gays’ undermines our culture.

        A foot or two north of here, apedad quotes the nominee:

        “Underneath their touchy-feely talk of tolerance, they seek to undermine American culture,” she continued . . . For example, homosexuals want to redefine marriage . . . ”

        Want to take another crack at that one, Mr. Bellmore?

        1. “decent treatment for ‘gays’ undermines our culture” DNE “‘gays’ seek to undermine our culture”.

          So I see no need to take another crack at it, I was right the first time.

    2. Why does anyone even both responding to Arty Cuckland anyhow? Might as well just slam your head against a brick wall.

      1. I hold out hope even for him, he’s responded rationally at times, though not recently.

        And, besides, you always have to take into account the people who might be reading the comment thread, unaware of his track record, and think him right just because nobody bothers to respond to him.

        1. Artie has served as a muse for me for a long time. His absurd slanders provide the occasion for me to correct him for the benefit of all.

          1. I often counsel him towards suicide. Tony too.

            Best thing for them really. Their commentary is going nowhere.

  7. I’m surprised they’re not calling her a Catholic.

    1. They are still trying to find an image of her smirking as well.

    2. While I don’t much care for the pearl-clutching victimization narrative, this does provide a good excuse to post this

  8. My favorite part of the dishonesty in attacking Rao is describing her views as “long-standing,” not because she has been saying them for many years, but precisely because they dug up stuff so far in her past to attack her with. If someone says, “I hate gay people” today? then you can only attack them for hating gay people now. But if someone said it 20 years ago, then you can claim that the person has hated gay people “for decades” even if they haven’t said anything on the subject since then.

    ?It’s a hypo; I (unlike these groups) am not claiming that Rao said any such thing.

    1. As a further note – that was the prevailing view 20 years ago.

      Everyone should keep a historical perspective. The shift in Society’s acceptance of gay marriage only occurred in the last 10 or so years (And quite suprisingly it as a rather quick shift)

      Similar to other prevailing views of the times – for example during the civil war and prior, the vast majority of northern whites believed that blacks were inferior. See Abe L writings and speeches of those times.

      1. “The shift in Society’s acceptance of gay marriage only occurred in the last 10 or so years (And quite suprisingly it as a rather quick shift)”

        That’s because it’s more a matter of Society’s resignation, than acceptance. Our robed masters made it clear to us that we weren’t going to have any say in the matter, and that persisting in resistance to them could have… consequences. (Just ask any baker or florist about that.)

        Now, I think it’s possible that, if SSM turns out to not cause problems, resignation will over time become acceptance. Quite likely, even. But it isn’t acceptance you’re looking at right now, it’s resignation and not a little fear of the consequences of expressing dissent.

        1. My main point is that the Democrats/Progressives are criticizing her for expressing thoughts that were effectively mainstream at the time of her writings and are only marginally controversial due to shifts in attitudes.

          The degree of shift is open to reasonable debate.

          With respect to asking any florist and baker – I agree with your comment – though it has been more of a case of lets cram SSM down your throat.

        2. Our robed masters made it clear to us that we weren’t going to have any say in the matter

          Your say in the matter has been controlling for thousands of years. Decades of freedom of speech has made enough conversions now.

          You may argue it should continue more rather than be interrupted by judicial fiat, but I really have little problem with activist judges increasing personal freedom. (But do have major problems with activist judges increasing the power of government to control things.)

          It hasn’t been very long since Ellen was brave, risking career suicide, or companies extending, voluntarily, benefits to gay partners were brave (and in some cases colliding with new laws trying to stop that.)

        3. “But it isn’t acceptance you’re looking at right now, it’s resignation and not a little fear of the consequences of expressing dissent.”

          Pointless psychoanalyzing. People answering anonymous polls don’t fear the consequences of expressing dissent.

          1. People answering anonymous polls have little to gain from telling the truth, and little reason to believe the polls are genuinely anonymous. And so are motivated to shade their opinions, too, even if not as much as people speaking where they know their opinion will be pinned on them, not merely suspect it.

            If Brendan Eich hadn’t lost his job for being on the popular side of a referendum a decade earlier, you might have more of a point. It is clear that people can be punished for their position on this issue. Even important people. And there’s no reason to believe it won’t get worse, much worse; The left’s power and determination to destroy anyone who dissents, or even dissented in the past, is only growing.

            Do you think people don’t notice things like that, and let it influence what they say? They’d be fools not to.

            1. A chain of speculation becomes less, not more probative, Brett. ‘I’ll bet these are the incentives and these are the resultant expected behaviors’ is a lot less scientific than it sounds.

              That’s why theoretical psychology is a much less robust science than it’s experimental counterpart.

              If anything, the marketplace punishing consumer-facing companies that disagree with something is proof of public sentiment against the company’s position. (Though I will agree that alone it’s more supportive than probative)

            2. “Do you think people don’t notice things like that, and let it influence what they say? They’d be fools not to.”

              I think you must not notice the incongruity between insisting that people are merely tolerating gays while simultaneously using as evidence the fact that being anti-gay has severe social consequences. Who is it that you think is enforcing those social consequences? Dogs?

    2. I’m less unhappy about the gay bit than about the culture war posture. That’s an extremely partisan lens, and I’d like to make sure she’s not still soaking in it. Should be an easy response.

      1. She appears to have been (and likely to be) a right-wing culture warrior, pointing toward backwardness and intolerance, pining for good old days that never existed.

        If she has discarded that approach to public life, she should receive a chance to explain her current thinking.

  9. “Senate Democrats and progressive groups launch unfounded attacks against a judicial nominee.”

    While this tactic didn’t ultimately stop the Kavanaugh nomination, it did succeed in driving fundraising to new heights for many of these groups, and it really motivated the base constituency of the Democratic Party – you know, brain-dead idiots who believe everything they hear which confirms their own distorted world view, regardless of just how detached from reality the accusations are – for the 2018 Midterm elections. So, in that sense, launching unfounded attacks on anyone nominated by Trump worked. Why would the left give up a tactic, no matter how dishonest or morally empty, so long as it works?

    1. The thing is, they’re not just trying to block nominees. They’re trying to de-legitimize them where they can’t block them, so as to set the stage for Court packing down the road.

      1. Court enlargement is an established, reasonable practice.

        Ask Arizona Republicans.

        1. So… Trump should do it right now, is what you’re saying?

          1. No, they should have done it last year. You need the House cooperating to pack the Court.

  10. Since her confirmation is assured, she ought to just mock the Dem senators when they bring up old articles or play the race/woman card or some other tactic. They can’t stop her so don’t treat their objections as legitimate.

    This advice goes for future Dem candidates facing a GOP minority. Without the filibuster, you don’t have to let the clowns perform.

    1. They can’t stop her so don’t treat their objections as legitimate.

      That’s not healthy for the judiciary, which isn’t healthy for our Republic.

      Of course, the clown show itself ain’t great either – I’m all for eliminating these public hearings, at this point.

      1. What would be healthy for our Republic is lining up every liberal in America on the National Mall and mowing them down with M-16s.

        1. Prof. Volokh thanks you for your conservative contributions to this discussion, sir, and welcomes you to continue providing them.

          Don’t emulate Artie Ray Lee Wayne Jim-Bob Kirkland, though, or you could be told to leave these parts.

          1. I’m not a conservative. I’m a reactionary.

            1. I’d say a bit beyond reactionary to the realm of parody. Though, to be fair, so is ALK.

              1. To malcontents and disaffected bigots, I suppose, the American mainstream seems downright demented and laughable.

      2. “That’s not healthy for the judiciary, which isn’t healthy for our Republic.”

        Having clowns attack a nominee without push back ain’t healty either. Not one question asked by a Dem is directed at obtaining information, its about getting soundbites and gotchas.

        1. And the same would be true if it was a Dem nominee and GOP senators.

          1. We do not disagree on that front, Bob – check out the second line of my comment.

            But to just mock Democrats is a level of open partisan rancor from an appellate judge that would be vastly worst than whatever expected bloviating senators do. It would delegitamize her own decisions, at the very least.

            1. “open partisan rancor”

              Senators routinely bully all sorts of witnessess. She is in the enviable position to strike back.

              “It would delegitamize her own decisions, at the very least.”

              So? They would be just as binding.

              Who cares in say 2029 if she belittled Cory Booker a bit in 2019?

              Oh, it would never happen in any event so you don’t have to worry. These nominees are coached to be suck ups even to 80 IQ senators like that one from Hawaii.

              1. Judges do not play the same role in our political minds as Senators.

                Illegitimate but binding judicial decisions are not a good thing for a republic. Why you would want to tempt a constitutional crisis to indulge your partisan spite is beyond me.

                Don’t pick up the 80 IQ bit from AltRightAngryTool, please.

                1. “Judges do not play the same role in our political minds as Senators.”

                  They do in my political mind.

                  “Illegitimate but binding judicial decisions”

                  Like Roe v. Wade and the gay marriage case?

                  “Don’t pick up the 80 IQ bit from AltRightAngryTool, please.”

                  You are right, its more like a 70IQ with her.

                  1. Political realities encompass than your personal feelings, and like it or not people expect judges to act differently from senators. And if they do not, there are repercussions for the judge institutionally more than senators.

                    How pro-life people see Roe is a rough approximation, but an illegitimate ruling is not the same as illegitimate process; the second has greater downstream effects on the institution. Which is why Roe became a cultural and political issue, not a constitutional crisis.

                    Senator Hirono isn’t on my radar much at all, but sorry you think she’s dumb.

                    1. “people expect judges to act differently from senator”

                      People are dumb.

                      Maybe it used to be true, but it has not been true for some time. The Resistance! judges of the past two years prove that. Or if you prefer, Roberts negotiating is way to uphold Obamacare.

                      Federal judges are unelected and unchecked politicians now.

                    2. Whatever your imaginings about anti-Trump judges, none of them have mocked the one of the political parties before the Senate.

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  12. Mitch should steamroll this through the Senate. The Dems don’t care about properly vetting candidates any more than the Reps do when they’re in the minority. It’s a game. Confirm her and let Schumer crow about injustice.

    1. Fine by me.

      See you guys in a couple of years.

  13. Elena Kagan was given the majority rating of qualified and the minority rating of well qualified in 1999. So the ABA rated Rao higher than Kagan.

    1. It appears the ABA doesn’t consider stale bigotry a disqualifier.

      1. In fact, it’s an enhancement.

      2. You keep describing the nominee as bigoted, intollerant, and backwards. Yet you have not cited one single example of her writing which even remotely supports your claims. Just WHY, excactly, should anyone take you seriously, Rev., when you are clearly nothing more than an empty-headed name-calling grenade thrower. Did you think that there was a real shortage of those types on the left?

        1. She wrote that people who advocated decent treatment of gays were undermining American society.

          That is a bigoted statement. That is backward thinking.

          I cited that statement by the nominee a bit north of this comment, you half-educated, bigoted rube.

          1. “She wrote that people who advocated decent treatment of gays were undermining American society.”

            No, she didn’t. Literally she didn’t, which is why you’re not quoting what she actually said, just paraphrasing.

            1. Saying ‘thing A will lead to result B’ does imply ‘the people advocating for thing A intend result B’ absent someone explicitly declaiming that connection.

              1. No, not even slightly.

                1. People can, and do, disagree as to whether thing A will lead to thing B. All the time. A standard example is lefties arguing for higher minimum wages and righties arguing that this will cost jobs. Lefties are don’t agree with righty economic analysis, and righties are perfectly capable of believing that lefties are just too dumb to realise the consequences of their dreamy utopianism. 50% of political debate has this logical structure.

                2. People can disagree on the content of thing B (“undermining American society” is hardly a mathematical function.) This accounts for most of the remaining 50%.

                3. And people can advocate for thing A believing that thing B is a likely, or even an inevitable side effect of thing A, without intending thing B. See the “doctrine of double effect.”

          2. “you half-educated, bigoted rube.”

            Comments like that might hurt my feelings if they came from someone whose opinion I gave a rat’s rosy red ass about. Thankfully, there’s no danger of that happening when they come from you, Rev. So, carry on, cretin.

  14. Having read her date rape piece, it seems entirely unexceptionable.

    She makes the obvious point that a woman’s poor choices can make her more vulnerable to rape. The same applies to a man’s poor choices in corresponding circumstances, people who leave their wallets or handbags within easy snatching range, people who choose to take the shortcut home along dark alleys, people who leave their windows open when they go out, and so on ad infinitum. The fact that you are responsible for the risks you choose to take, or take recklessly, doesn’t subtract anything from the criminal’s responsibility – responsibility is not a zero sum proposition. No doubt it is very hurtful to a raped woman to say that she is to some extent responsible for having put herself at risk, and one would avoid saying so in a face to face conversation, but in a public piece about policy and reality, white lies are hardly to be commended.

    The other point worth mentioning is equally obvious. The average man is bigger than the average woman, and it will take a lot more booze to make him drunk. Young women or teenage girls, built on a smaller scale than the Williams sisters, unused to heavy drinking, who go to college and start drinking drink for drink with the guys are going to find themselves blotto very quickly. But Ms Reo would probably have got herself into even more trouble if she’d mentioned that.

    1. Rao. I beg her pardon.

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  17. I don’t think she is in much danger of being rejected.

    Actual question from a US Senator who wants to be President:

    “Sen. Cory Booker (D-NJ): “Have you ever had any LGBTQ law clerks?” Neomi Rao: “Senator, I’ve yet to be a judge. I don’t have law clerks.”

    1. GOTCHA! She has NOT!

      1. Nothing will ever top Orrin Hatch getting RBG to say that an employer in a majority-black inner city with 50+ employees, but no black ones, had definite intent to discriminate in hiring. Until he pointed out she had had 57 law clerks, and no black ones

        1. @NashTiger

          Except that didn’t happen. Ginsburg responsed to Hatch by emphasizing that each case is judged on a well-developed factual record and legal briefing; she absolutely did NOT say that a pattern alone was proof of intent.

          Watch for yourself: https://youtu.be/TfQxBlQ7wSI

          1. Ouch. She didn’t admit to that in the hypo, but she did suggest a company that hadn’t hired any women might be guilty of unconscious bias.

      2. “GOTCHA! She has NOT!”

        You may be on the something. Attack her for not having any LGBTQ law clerks, because it’s true right? And just ignore the fact that she was never in a position to have them, because she was never a judge. Most people won’t know the difference anyway, or care, if they subscribe to lefty logic.

        And if you could work Russian trolls in there somehow, that’d be great.

        1. You mock but a Buzzfeed “reporter” sent out a tweet saying he asked about gay “staff”, not “clerks” to imply anti-gay bias.

          1. No joke is so ridiculous and outlandish that it won’t become a tactic of the left.

            But there seems to be one question that no one is asking:

            How do you intentionally hire someone who’s LGBTQ? If you ask people their sexual orientation, you’re as a bigot. Yet if you don’t hire LGBTQ because you’ve no way of knowing, you’re a bigot.

            The left accuses anyone they don’t like of being a bigot and just changes their rational to fit the situation.

            1. I think it’s a dumb question, and Booker is far from my favorite Dem at least partially due to this sort of sloppiness with his spotlight-grabbing. Good grandstanding means doing your homework!

              But as for how you hire gays, I suspect the idea is you just hire people, and some of them will turn out to be LGBTQ because some people in just about any population are gonna swing that way.

              1. Unless you’re hiring an awful lot of people, the odds of any of them turning out to be alphabet soup people are pretty poor, because they’re a tiny fraction of the general population.

                Regardless of what TV and movies might make you think…

                1. Whether you are right or wrong in tilting at LGBT populational cohort windmills, Brett, that’s all people are talking about when they talk about representation – absent some correlation between a subgroup and ability/desire to do a job, the population hired should look like the population at large.

                2. Unless you’re hiring an awful lot of people, the odds of any of them turning out to be alphabet soup people are pretty poor, because they’re a tiny fraction of the general population.

                  Eh…

                  Assuming no institutional or pipe-line bias, let’s say the odds of someone being an “alphabet soup” person is n. Now, if you are hiring one person, the odds of that person not being an “alphabet soup” person is 1-n, yes? If you are hiring x people, the odds of none of them being an “alphabet soup” person is (1-n)^x.

                  So if the probability of “alphabet soup” is 3%, and you’re hiring 10 people, assuming no biases you have about a 70% chance of getting all straights. You only need to be hiring 20 people to have even odds of at least one being “alphabet soup”. And if you’re hiring 100 people? The odds of getting all straights is about 5%.

                  So no. You don’t really need to be hiring that many people to have pretty good odds of hiring at least one “alphabet soup” person.

    2. “Actual question from a US Senator who wants to be President:”

      There are about 100 of those, so I’m glad you further narrowed it.

      1. 99, Mazie Hirono is naturalized. Rudy Boschwitz used to joke in his day, 1980s, he was the only US senator who wasn’t running for President.

        1. That just means Mazie can’t fulfill her desire to be President, not that she doesn’t have the desire.

    3. I kinda wish it had gone like this:

      Booker: Have you ever had any LGBTQ law clerks?
      Rao: No, Senator, I have not.
      Booker: No? Have you ever had any black law clerks?
      Rao: No, Senator, no black law clerks.
      Booker: Disabled law clerks?
      Rao: No.
      Booker: Why not?
      Rao: Why do you think?

  18. ” they have no interest in seeing an exceptionally intelligent woman of color confirmed …” One’s status as a legitimate P.O.C. depends entirely on whether or not one is on the left or not. Clarence Thomas for all intents and purposes is considered “white” by the Democrat party.

    1. I think he would irritate them a lot less if he wasn’t, so he still has to pay the race penalty. This sort of thing is the nth example of why the left is basically correct about the impossibility of assuming race blindness is possible in this country.

  19. “Rao is currently the Administrator for the Office of Information and Regulatory Affairs (OIRA) …”

    Way cool. She does not seem to have an opinion about Brown v. Board of Education though, and I would think that all Volokh Conspirators have an opinion about that case. I seem to remember it being covered in law school.

    1. She has an opinion. She is educable, however, and has observed how stating her opinions about gays, rape, and other subjects bothers most Americans, so she will duck and cover.

  20. I understand she has a distinguished past, but the Trump administration has distinguished itself by suffering reverses in court because of not following the Administrative Procedure Act closely enough. For the last 2 years Rao has, I believe, been in charge of reviewing proposed changes in regulations in OMB. Apparently she didn’t see the APA as important or was unable to resist pressure from within the administration to approve agency proposals.

    1. “but the Trump administration has distinguished itself by suffering reverses in court because of not following the Administrative Procedure Act closely enough.”

      I think it’s more a matter of having reverses in court because of being the Trump administration, and the Administrative Procedure act just providing a handy pretext for the reverses.

  21. “Nominations like hers are among the (very) few bright spots of this administration.”

    I’m not sure what the reasoning behind this comment is. Personal foibles aside, Trump has governed in arguably the most conservative way of any president in modern history.

  22. Cory Sparticus Booker

    Have you ever had a LGBT law clerk?

    Rao :

    I am not yet a judge so I dont have any law clerks.

  23. What, no disclaimer that Rao is a Volokh Conspiracy alumni?

    That said, go check out her 2008 article On the Use and Abuse of Dignity in Constitutional Law. Simply put, she objects to how the court ruled in Lawrence v. Texas (2003) and, five years afterwards, wrote a long lengthy article on all the way Kennedy was wrong.

    So I’ll have to beg forgiveness, but self-interest says that I shouldn’t support someone who would have kept me a felon in Texas.

    1. Not to worry, the Dems would like to make you a felon for a hundred other things.

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