Republican Senators are Skating Awfully Close to Identity Politics on Judicial Nominations

|The Volokh Conspiracy |


As readers may recall, Judge Neomi Rao's nomination to the D.C. Circuit Court of Appeals hit a snag when Senator Josh Hawley questioned her commitment to opposing "substantive due process" and whether her personal political views leaned toward being pro-choice. After significant pressure from conservative activists, the Trump administration, and, according to reports, personal reassurances from Rao's former boss Justice Clarence Thomas regarding her conservative bona fides, Hawley relented and Rao was confirmed.

Jessie Liu, nominated to be associate attorney general, wasn't so lucky. Opposition from Utah Senator Mike Lee killed her nomination, she withdrew on Friday.

According to his spokesman, Lee opposed Jessie Liu's nomination to be associate attorney general because of "questions about her record on life issues." The only basis provided for concluding that Liu might be pro-choice is Liu's prior affiliation with the National Association of Women Lawyers (NAWL), which opposed Sam Alito's 2005 nomination to the Supreme Court based in part on concerns about reproductive rights. NAWL is a professional development organization, whose slogan is "Empowering Women in the Legal Profession Since 1899." Any statements it makes related to abortion are tangential to its mission. Liu said that she played no role in the decision to oppose Alito's nomination, and no one contradicted her assertion.

Meanwhile, Liu personally expressed support for Alito's nomination to the Supreme Court, signing a Yale Law School alumni letter on his behalf. And after Alito joined the Supreme Court, she helped organize a Yale Law School alumni dinner in his honor (here they are together). Under normal circumstances, one would think that would have been enough to quell any doubts about Liu based on her membership in an organization that opposed Alito. After all, Lee himself was an attorney at Sidley & Austin in Washington, D.C., from 1999 to 2002. At that time, Sidley was a significant donor to NAWL. Obviously, he knows from experience that one's professional affiliations don't necessarily indicate one's personal views.

But these were apparently not normal circumstances. There have been many nominees to high-level Justice Department positions with no public record on abortion who have been approved without any concerns being raised. In Rao's case, people said that she was being subject to particularly high scrutiny because she was in a position to be a short-lister for a Supreme Court nomination. And yet, I don't recall similar concerns being raised about other Trump nominees who are viable candidates for the Supreme Court, such as the Sixth Circuit's Joan Larsen, who to my knowledge has never said anything publicly about abortion. In Liu's case, it's pretty hard to think of a good reason why her pro-life bona fides should be scrutinized more closely than other nominees'.

Unfortunately, in both situations it's all-too-easy to come up with bad reasons. Rao is the daughter of Indian Parsi immigrants, and Liu is the daughter of Chinese immigrants. It seems as though their minority background may at least subconsciously raise suspicions that they aren't on "the team." I suspect that such suspicions might have been quelled if they belonged to "appropriate" churches–the Mormon church, a conservative Protestant congregation, a Catholic parish known for being actively pro-life. As it happens, while I can't speak to either woman's personal religious beliefs, I understand that their families are members of Jewish congregations.

Please note that I'm not accusing the Senators in question of antisemitism. Nor am I accusing them of conscious racism. But I do suspect that in certain conservative circles, people have an image in their head of what a "trustworthy" conservative looks like, and that person is white, likely male, and a religious Christian. Those who don't fit that mold are more likely to have their conservative credentials questioned.

This is both unfair and a disaster for the Republican Party. Imagine you are a conservative-leaning Indian-American Hindu, or Thai-American Buddhist, or Iranian-American Muslim, or African American agnostic. You are attending Yale (Liu's alma mater) or Chicago (Rao's) law school and you have nascent but indeterminate political ambitions. You are trying to decide whether to "come out" as a Federalist-type, or keep your head down and avoid politics. You know if you do the former, you will be the subject of special derision and social sanction from your liberal classmates, who will openly question how a person of color can hang out in Fed Soc circles.

Given that dynamic, Republicans should be especially welcoming to such individuals. Instead, the Rao and Liu situations suggest the opposite. It comes awfully close to looking like implicit white Christian identity politics, and it's a bad look for the GOP.

CONFLICT OF INTEREST WATCH: Liu's husband and Rao are friends and former colleagues of mine.

UPDATE: Just noticed an ambiguity in the title of this post, so I changed it. I originally alluded to "White Christian Identitiy Politics." But that I did not mean White "Christian Identity" Politics, as in the politics of the white supremacist Christian Identity movement, but "White, Christian" Identity Politics, as in "we trust and prefer people in high office who share a background we identify with." And for what it's worth, I've heard plenty of conservatives favoring this or that potential SCOTUS nominee on the grounds that he or she would be "trustworthy" because of their "background," especially religiosity. To my mind, a well-thought-out judicial philosophy and the willingness to issue unpopular rulings easily trumps any of that, unless one wants to get into the sort of "wise Latina" territory conservatives usually m

FURTHER UPDATE: Some are claiming that I accused the senators of being white supremacists. Perhaps that was based on my poorly-worded and now-edited original title, and I apologize if such inference was taken. If not that then, (a) no, I didn't; (b) no, I'm not now; and (c) what I am saying is that when Republican Senators and their allies on the issue successively question the conservative bona fides of two Trump nominees who don't fit the stereoptypical mold of a "conservative" while other "mold-fitting" nominees for similar positions haven't faced similar scrutiny, it raises the question of whether the lack of mold-fit played a role in raising doubts about their conservatism. Suggesting possible cognitive bias in evaluating nominees is a far cry from suggesting white supremacism.