A Brief Note on the Recent Neomi Rao Controversy

|The Volokh Conspiracy |

As VC readers are aware, D.C. Circuit nominee Neomi Rao has been the subject of contoversy for op-eds she wrote twenty-five or so years ago while in college. I'm generally in favor of an informal statute of limitations on such things, and I've said so publicly even in situations where (a) the underlying behavior was far more outrageous and (b) I have no particular love for the individual involved. For example, when the Ralph Northam controversy broke, I tweeted, "Unpopular Opinion? Don't judge people by stupid, offensive things they did 30 plus years ago, unless such behavior has continued."

Also, as someone who wrote conservative columns for the school newspaper on my own very liberal college campus, I am especially alert to the temptation to express one's views a bit more sharply than one might otherwise, or even to sometimes express views for the sake of Devil's advocacy, in (perhaps immature) reaction to the stifling political correctness one faces. Nor, of course, does one write such articles thinking that twenty-five years later interest groups will be pouring over them looking for any indelicate language that can be taken out of context and used against you, and in fact in my case I usually dashed off my opinion pieces in twenty minutes or so when I felt the inspiration. I'm guessing if I read those pieces now, like Rao I'd occasionally cringe at how I expressed myself.

All that said, critics have often tendentiously described the content of Rao's writings, primarily by taking a infelicitous sentence or two out of context. For example, an article that has been described as anti-gay actually argues that the mainstream, left-wing gay group on campus should not ostracize a group of conservative gay students that had recently formed. Arguing for tolerance of conservative gay students by other gay students isn't the sort of thing that can reasonably be construed as "anti-gay."

Similarly, her article on a date rape allegation at Yale has been unfairly described as blaming women for date rape. Neomi has apologized for "insensitivity" in how she addressed the issue, but she didn't blame women for date rape; the "worst" thing she wrote was an offhand sentence noting that staying reasonably sober is a good way to reduce the risk of being assaulted. But blame? She stated in the beginning of the article that a male student who assaults a woman "should be held responsible" and later reiterated "that a man who rapes a drunk girl should be prosecuted."

NOTE: Neomi Rao is both a faculty colleague and a friend.

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  1. But in fact that was exactly what McCabe was attempting to do. The intent of the 25th is pretty clear. McCabe was attempting to remove the President for reasons that already have an avenue of redress, i.e., impeachment.

    His attempt was illegal because it was an end run around the Congress and contrary to the intent of the 25th.
    He deserved to be sacked.

    1. I am sorry that this comment ended up in the wrong place.

      1. It still wasn’t wrong….

  2. This is all part of the gay agenda. Make any dissent to their disgusting lifestyle de facto illegal.

    1. Buuuuuuuuutttttttt Seeeeeexxxxx.

  3. Sounds like you’d better start going through your college writing and apologizing for it. I’m sure your co-blogger Prof. Manta would be happy to schedule the struggle session for you.

  4. The Neomi Rao controversy in a nutshell: (1) Democrats do not like the fact that Trump is appointing judges and justices, especially to courts where such judges and justices might have an ability to influence the direction of American jurisprudence away from their preferred “living constitutionalism”; (2) In reaction to (1) above, Democrats will search very hard for any remotely plausible (or even highly implausible) justification to oppose any Trump nominee to such a position; (3) In the case of Neomi Rao, Democratic opposition research teams were unable to find anything more solid than 30-year old college writings of the nominee; (4) Even though these long ago writings by the nominee weren’t terribly damning, they could be twisted and warped and mischaracterized by taking words and phrases out of context; (5) All in all, it was very thin gruel on which to base opposition to Rao, but it was all the Democrats could come up with; after all, they couldn’t be honest about their motivations and admit that they would oppose ALL Trump nominees, no matter how well qualified, and especially a female nominee of immigrant background who might expose their claims that Trump was a racist misogynist as complete crap. And they knew that the far left Democratic base would buy whatever they were selling, while the GOP already knew their strategy and would reject all of it, so they didn’t really need a convincing or persuasive reason to oppose Rao.

    1. As opposed to Republicans, who did not like the fact that Obama was appointing judges, and didn’t even bother to come up with any “thin gruel” to oppose the nomination of Merrick Garland. But of course it’s only one side playing these games. Or these games are only wrong when the other side is playing them.

      1. The Biden rule for supreme court nominees originated from Biden, a democrat and Obama’s VP. A rule he argued for *because of risk a Republican president (HW Bush) might appoint a SC justice in their last year*.

        Not going to say I agree with Republicans on most or even many things, but what’s good for the goose is certainly good for the gander. Especially when Biden, author of said rule, was currently VP.

        The republicans merely granted the democrats their argument. There’s literally no defense against that. Certainly not because the group in power changed.

        1. Biden saying something does not a rule make.

          1. But, Senate Dems doing exactly what Biden proposed as a rule makes it look like a rule even if there is no formal vote. At least a Dem rule applicable only when it serves the Dems. Garland was payback. Deservedly so.

            1. Senate Dems didn’t do that though so I don’t know that you’re talking about.

              Garland was unprecedented. Though arguing that payback justifies the means is quite telling.

        2. Well, it must be perfectly legitimate and proper if a single Democratic senator proposed it in a speech in 1992. That’s an interesting benchmark with which to judge all future actions.

          1. The actions being judged here are the crybaby antics of the Democrats who are labeling as beyond the pale behavior that the head of the Senate Judiciary Committee (and presumptive 2020 candidate) advocated.
            Other than that: cool story, bro.

            1. Yeah, Smooth, Binden is proof the Dems are all faking being outraged about Garland in bad faith.

            2. Exactly my point, bro. Your argument is that since Biden advocated it, it’s okay that Republicans did it. I suppose since Biden was the chairman of the Judiciary Committee and he might run for president in 2020, he obviously speaks for every Democrat. Cool story.

      2. If the Democrats were in power and chose to oppose any nominee Trump put forward, they could do that. (You or I may find it a stupid policy, but they could.) My problem is with them not having the numbers to actually prevent a nominee from being approved so resorting instead to smearing their name and reputation in hopes of holding back the approval. Just say you hate her because Trump nominated her and you hate all Trump nominees. That’s at least being honest.

        1. I suppose that’s true in this case, if by “smearing their name and reputation,” you mean disagreeing with something they publicly wrote.

  5. A note on any “controversy”: just because some worthless jerks complain, that doesn’t mean you have to acknowledge them by agreeing that there’s a “controversy”. Consider instead that it’s merely a bunch of worthless jerks blathering like they always do.

    1. Shall we remember that point when the Supreme Court is to be enlarged?

  6. Advocating prudent behavior and blaming victims are the exact same thing in many progressive circles.
    I have literally said “advocating prudent behavior is the exact same as blaming the victim” sarcastically and had many progressives jump in and earnestly congratulate me for my astute observation.

  7. The problem here is that somehow raising issues of ideology, or questioning a nominee about past decisions, is considered out of bounds, so those who oppose a nominee on those grounds have to dig around for other issues.

    IMO, if we dropped all the ritual about “balls and strikes” and “Gee, I prefer not to say,” and so on, we might get meaningful confirmation debates.

    1. See, this is just dumb. If issues of ideology are out of bounds (and they should be – it’s about qualification to serve as a judge, not ideology), then smokescreen issues as proxy fights over ideology *should also be out of bounds*.

      The only legitimate objection to a judicial appointment is unsuitability to be a justice. The only questions the senate need answer is ‘Are they qualified’.

      1. …I think you have bernard’s position on ideology completely backwards.

      2. The only questions the senate need answer is ‘Are they qualified’.

        I think the Senate is entitled to base its decision on any factor the President is entitled to base his nomination on.

        I also think it’s ludicrous that nominees refuse to comment on well-known court decisions. Do they really have no opinion about Roe?

        1. “The only legitimate objection to a judicial appointment is unsuitability to be a justice. The only questions the senate need answer is ‘Are they qualified’.”

          In your opinion. The constitution certainly doesn’t say that. And besides, ‘are they qualified’ could be answered in ideological terms, if a senator so chooses. It’s an infinitely malleable term.

    2. “somehow raising issues of ideology, or questioning a nominee about past decisions, is considered out of bounds”

      There’s a lot of talk to this effect, but somehow they manage to slip in ideology and past decisions in these confirmation battles.

      Which is fine, since investigating whether the nominee to adminster justice properly includes whether they have an approach which yields unconstitutional, unjust results.

    3. It’s not that ideology is out of bounds. It’s well within bounds.

      I think the problem here is trying to pretend that ideology is something other than ideology. That it’s bigotry, or sexism, or what have you.

      Heck, this wasn’t even ideology, it was just common sense, most of it.

      1. Some ideology is bigotry, Brett.

  8. Ooh, are we gonna get a cage match between Conspirators?

  9. So in other words, she wrote in her opinion regarding rape exactly what I told my son and my daughter – don’t get so damn drunk you’re not in control of yourself.

  10. It seems that the idea is that no matter how stupidly or irresponsibly you act, the left wants the government to make sure nothing bad happens to you. That means that the government has to be incredibly powerful, be able to intervene in all aspects of our lives, and have control of all the country’s resources.

  11. As VC readers are aware, D.C. Circuit nominee Neomi Rao has been the subject of contoversy for op-eds she wrote twenty-five or so years ago while in college.

    And five years ago, and ten years ago.

    NOTE: Neomi Rao is both a faculty colleague and a friend.

    And a Volokh Conspiracy alumni.

  12. Also, as someone who wrote conservative columns for the school newspaper on my own very liberal college campus,

    Another guy who rails against strong liberal-libertarian mainstream schools but chose to attend one of them — rather than one of the hundreds of conservative-controlled campuses — when he had the chance.

    Why should good schools credit suggestions that they should emulate fourth-tier (or unranked), censorship-shackled, nonsense-teaching, dogma-enforcing schools by hiring more faculty members who are politically active movement conservatives? Especially when those suggestions have a ‘do as I say, not as I did’ provenance?

    1. Your programmers need to upgrade you, your standard auto-response is getting boring.

  13. For example, an article that has been described as anti-gay actually argues that the mainstream, left-wing gay group on campus should not ostracize a group of conservative gay students that had recently formed. Arguing for tolerance of conservative gay students by other gay students isn’t the sort of thing that can reasonably be construed as “anti-gay.”

    She wrote that people advocating decent treatment of gays were undermining American society. Let’s hear the defense of that one.

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

      What is completely indefensible is your attribution to Rao something that she never wrote.

  14. For example, an article that has been described as anti-gay actually argues that the mainstream, left-wing gay group on campus should not ostracize a group of conservative gay students that had recently formed. Arguing for tolerance of conservative gay students by other gay students isn’t the sort of thing that can reasonably be construed as “anti-gay.”

    I think this is too generous. Yes, that’s the aim of her article, but much of what she says to support it is dubious. I think it is worthwhile to ask whether she still holds those views today.

    1. Why? Again: she’s not running for office. Even if she does hold those views, so what?

      1. My main issue was that she seemed to have a culture warrior axe to grind in her writings. But she’s already released a statement disclaiming that youthful tone.

        I’d vote against her, since I think ideology is something the Senate can take into account, but I don’t think she’s illegitimate or unqualified or even out of the mainstream.

        1. I think she is also a Zoroastrian Parsi – at least her parents are. That’s pretty cool, I wonder if she would be the first one on the federal bench.

      2. I take a broader view of “running for office” than you do. She is seeking a lifetime appointment to a very high-level government position. I think it’s important to explore her views on lots of subjects.

        For example, in one of the linked articles she describes homosexuality as a “socially unacceptable activity.” Does she still think so?

        Of course, you and I may differ on what it is appropriate to find out about a judicial nominee, but I tend to regard federal appeals court judges as political officials in significant part.

        1. But let’s be honest. Your real concern has to be results oriented.

          You’re using the information you gather from her personal opinions to make an educated guess about what her legal decisions might be. Which is of course a valid thing to do given our experience of correlations we see between many judges’ political beliefs and their legal decisions.

          But what if her legal decisions have always been correct in your opinion? Wouldn’t that really be what matters to you?

          Wouldn’t you rather have a klan member as a judge than someone who shared all your political views if the klan member was more like to render the results you wanted?

          For example, in my opinion Eugene Volokh would make an excellent Supreme Court justice, even though he’s written some posts arguing that torture should perhaps be legal. I am totally confident that EV would still faithfully interpret the law AS IS rather than as he perhaps he thinks it should be.

          Is that what’s important ?

          1. Your real concern has to be results oriented.

            Like most other people. This includes politicians who bloviate about “judicial philosophy” or whatever.

            If common sense didn’t tell us this, then the behavior of politicians would. It’s not for nothing that they so often make an issue out of trying to uphold or overturn some decision.

            You’re using the information you gather from her personal opinions to make an educated guess about what her legal decisions might be. Which is of course a valid thing to do given our experience of correlations we see between many judges’ political beliefs and their legal decisions.

            Yes.

            But what if her legal decisions have always been correct in your opinion? Wouldn’t that really be what matters to you?

            Only maybe, depending on the cases. But Rao has never been a judge, so we have no such decisions.

            Wouldn’t you rather have a klan member as a judge than someone who shared all your political views if the klan member was more like to render the results you wanted?

            I don’t understand the question, but I would oppose having a Klan member as a judge. Hugo Black is dead.

            I am totally confident that EV would still faithfully interpret the law AS IS rather than as he perhaps he thinks it should be.

            And I am totally confident that he would interpret the law as as he thinks it is, and that, being human, his thinking will be at least a bit influenced by what he thinks it should be.

      3. She is literally being considered for a job where her judgement is the chief qualification and task.

        So finding out about how she judges folks and think, also known as “views”, is not inappropriate.

        1. Don’t you think there’s a difference between different kinds of judging.

          If she judges the law badly, then she’s a bad judge. But if she judges Biodome to be a great movie, it doesn’t NECESSARILY make her a bad legal judge.

          Are there any examples where she has made incorrect or very controversial legal decisions that seem to be the result of some personal bias she maybe used to have?

          1. She has never been a judge.

            1. Okay, has she ever written legal articles where her interpretation of the law seems faulty due to bias against gay people?

  15. It’s remarkable that as a college student she showed more nuance and higher-level though in her articles than many of her so-called “elders” are able to deal with.

    It’s the young student who tried to capture the complexities of various situations, and it’s the “experienced, mature” senators and commentators who are so used to dealing in simplistic sound-bites that they just can’t get what the young person had to say.

    Sad!

  16. Whatever you do, if you do anything, NEVER suggest that women or minorities have any kind of personal responsibility. Everything that happens to them can be blamed on an -ism or lack of privilege. EVERYTHING.

    If a man gets too drunk and something bad happens to him it is funny and his fault.

    If a woman gets too drunk and something bad happens, well, don’t blame her, that is victim blaming!

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