The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Neomi Rao Under Fire

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


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.