The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The legal world has been abuzz with the nomination of Neomi Rao, and my coblogger Jonathan Adler has detailed her accomplished background here. He has also criticized the focus on her college writings on topics such as homosexuality and consent. I have only met Neomi on a few occasions and hardly know her, so my observations in this post are largely those of an outsider that has access to similar information as the rest of the public.
First, I would like to point out that Republican politicians and parts of the conservative media have done Neomi no favors in comparing the accusations against her to those that Justice Brett Kavanaugh encountered. One example of this is her college classmate's Jeremy Carl's National Review piece entitled "The Kavanaughing of Neomi Rao", which manages not to reference Brett Kavanaugh by name a single time in the actual text of the article. Instead, we are served to unsubtle allusions in lines such as the one that "Rao is an outstanding nominee who, like many other conservatives, is not being attacked for her faults, but for her virtues."
Meanwhile, Megan McArdle writes that Neomi "is being targeted by a similar sort of allegation — in the same family, but distantly related." In my view, whatever one thinks about the procedural aspects of Brett Kavanaugh's nomination and confirmation process, the accusations against him were significantly more serious than those against Neomi. Nobody has come forward to claim that Neomi committed sexual assault or otherwise broke the law. Additionally, Neomi admits–and states that she regrets–writing what she wrote about gender equality and the nature of sexual consent. Brett Kavanaugh admits nothing and regrets nothing when it comes to his relations with the female gender.
Last but not least, Neomi is not under suspicion of having committed perjury at her hearings. Those who believe that there is any equivalence in unfair treatment of Neomi Rao and Brett Kavanaugh may want to revisit the latter's record regularly.
Second, should Neomi's college writings matter? Jonathan Adler emphatically says no, and David Lat has similarly urged for some time that judicial nominees' college writings should generally be left in the past. Lat makes very reasonable points about how people often change their views and how college should be a time for experimenting intellectually, lest we only accept what David Brooks termed organizational kids that never dare to say anything controversial. So why do college writings come up at confirmation hearings? One key reason, of course, is political opportunism, whereby both parties dig up all the dirt that they can.
Another reason, however, raises more complications: judicial nominees were often less careful to hide their views in their youth than later in life when they entered the professional and especially political arena. I am therefore rather unconvinced when McArdle writes about Neomi: "If she's lying, there should presumably be some less elderly, and more relevant, evidence of deception." Given the nature of the political process, actually, no, I would not expect for there to be such evidence whatsoever because most people who have made it to the stage of being nominated by U.S. presidents are savvy enough not to produce it.
At the end of the day, we do not know and cannot know for sure what Neomi or any other nominee thinks in her heart of hearts, an uncertainty that leaves us with some understandable anxiety given the great power of appellate court judges. That said, I would caution against dismissing an entire class of possible nominees because they were perhaps not raised by parents who were part of pre-existing political elites advising their children that in college they should "talk less, smile more".
Third, were the college writings that bad? I do find some of their content quite problematic, though unfortunately even when I attended Yale College several years after Neomi, in the early aughts, her past rhetoric on sexual consent was in line with what many other young conservatives believed (and some of them have become conservative commentators who to this day write similar things).
I am troubled that Neomi wrote that "if [a woman] drinks to the point where she can no longer choose, well, getting to that point was part of her choice". For one, this potentially equates drunk dating with drunk driving in the sense that we should hold someone responsible (morally? legally? it's unclear) if the person gets raped similarly to how we would condemn someone (both morally and legally) for hitting someone with her car while drunk. But in the example of date rape, there is no legal offense without a rapist. Drunk dating does not make you a bad person the way drunk driving does, and implying otherwise is wrong.
I don't buy that, as Ted Cruz at the hearings and conservative commentators since have tried to convince us, Neomi was simply trying to help women by giving them advice on how to protect themselves. Her statement was embedded in a moral (and potentially legal) context that unfortunately did lend itself to victim-blaming. I have explained in my scholarship on sexual fraud why the argument that someone could have done more to protect herself (even where factually accurate) is problematic because 1) that can be true of most crimes and torts and 2) it tells us nothing about what level of precaution is actually optimal at the societal level.
Fourth, that said, does this make Neomi Rao a particularly poor candidate for the D.C. Circuit? I doubt it. She shouldn't have said what she said, and I genuinely hope that she meant it when she disavowed those opinions at the hearing, but viewing her overall record, I find it hard to believe that she compares negatively in the pool of nominees that Donald Trump would realistically consider. This is where the perfect solution fallacy comes in: those who were already wiser on the topic of sexual consent in the 1990s are unlikely to be on the current political radar.
Indeed, if Neomi's nomination got derailed, we would likely get a different Republican nominee who perhaps did not write anything in college newspapers but is no more likely to advance gender equality than the confirmation of Neomi Rao would. Note that this was not my view of Brett Kavanaugh and that, like Ilya Somin, I fully believe that a less problematic candidate could have been found if Kavanaugh failed to be confirmed given the gravity of his alleged conduct and behavior at the hearings.
Fifth, a broader problem remains, which is that while we are urged by some to forget what Neomi Rao said 25 years ago, that means she also had 25 years to express in a public forum that she changed her views. Monica Hesse writes in WaPo: "What I'd love is for someone to get it right. Some candidate or appointee to apologize not because a leaked photo had suddenly forced them to, but because they realized the error in their past behaviors, and they were prepared for an honest conversation illuminating America's hurtful past and the role they played in it."
To be fair, perhaps Neomi didn't even remember what she wrote all those years back until it was brought up during the confirmation process. But those of us who put things in the press–even the college press–have a special responsibility to correct the record wherever possible, a responsibility that is only increasing the more materials are available online and hence never truly become a part of the past. Of course, admitting to past intellectual mistakes can come at a (sometimes high) political price. Society can do its part in that respect by moving toward becoming more generous and hospitable toward those who step forward unprompted to say that they were once wrong and have changed their ways.