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Volokh Conspiracy

Neomi Rao for the D.C. Circuit

President Trump announces a superlative pick for to replace Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit


The Senate's confirmation of Brett Kavanaugh to the U.S. Supreme Court created a vacancy on the U.S. Court of Appeals for the D.C. Circuit, the court often characterized as the "second-highest" court in the land. Today, President Trump announced his intention to nominate Neomi Rao to fill this vacancy. This is an excellent choice.

Rao currently serves as the Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget (a position for which she was also well suited, as I discussed here and here). In this role, she oversees executive branch review of federal agency action and coordinates the Administration's overall regulatory agenda. She is, in effect, the White House 'regulatory czar."

Before taking the reins at OIRA, Rao was a Professor at the George Mason University Antonin Scalia Law School, where she founded the law school's Center for the Study of the Administrative State (where I am a Senior Fellow). Under her leadership, the Center sponsored conferences and workshops on various issues related to modern administrative law and regulatory policy, featuring legal academics and policy experts from across the political spectrum. In this work, and through her scholarship, she garnered a well-deserved reputation for her thoughtfulness and her intellect.

Rao is not merely an academic, though. She also worked in the White House Counsel's office during the Bush Administration, the Senate Judiciary Committee, and in private practice. A graduate of Yale University and the University of Chicago Law School, she clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and Justice Clarence Thomas. She has also served as a Member of the Administrative Conference of the United States and on the Governing Council of the ABA Section of Administrative Law and Regulatory Practice and co-chair of the Section's Regulatory Policy Committee.

As the above should indicate, Rao has the range and depth of experience to make an excellent D.C. Circuit judge, including service to all three branches of the federal government. Her OIRA experience, in particular, will provide her with particular in sight and expertise on administrative law and process issues. (She also would not be the first OIRA Administrator to be nominated to that Court. Judge Douglas Ginsburg had also served as OIRA Administrator.) Though labeled a "czar," the job of OIRA Administrator often involves acting as something of a traffic cop, making sure agencies play by the rules and do the work necessary to justify their desired policies. In this Administration, this has often meant telling federal agencies to go back and try again or to do more to show their work—something judges on the D.C. Circuit often have to do as well.

In case it is not clear, I am a huge fan of this pick. I have known Neomi Rao for well-over twenty years and I am confident she will make an excellent judge. She has a first-rate intellect and a high degree of intellectual independence. As a judge she would follow the law, as she understands it, and not worry about whether a given outcome was consistent with a particular political agenda or "party line." In short, it is hard for me to think of someone who would be a better pick for this seat.

Given the importance of the D.C. Circuit—and the lack of any home-state Senators to mollify—I would expect the Senate Judiciary Committee to act promptly on this nomination. I would also like to think that this will not be a particularly controversial nomination. Rao was confirmed to OIRA 54-41, with six Senators crossing the aisle to support her confirmation. While I have no doubt most of the Senate will vote on party lines, this is the sort of nomination that should be capable of attracting bipartisan support. In any event, I look forward to the opportunity to call her "Judge Rao."