The Case for Neomi Rao
Neomi Rao is President Donald Trump’s nominee to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals. On that court Kavanaugh developed a reputation as a zealous disrupter of the federal bureaucracy. Not one to rest on the Chevron standards by which federal courts defer to federal bureaucrats to serve as judge, juror, and executioner of American citizens and businesses, Kavanaugh repeatedly pushed back on regulators and bureaucrats who he thought had often turned into quasi-dictators. President Trump wants a replacement who shares Kavanaugh’s passion for taming and fighting the bureaucracy.
Which is why Trump nominated a darling of the Federalist Society, Neomi Rao.
Rao is currently the administrator of the Office of Information and Regulatory Affairs (OIRA), which oversees the drafting and implementation of government-wide regulations. In that capacity, Rao has developed a reputation for undercutting bureaucrats and killing regulations, turning the office into a regulatory roach motel of sorts: Proposed regulations go in, but they never emerge to burden America’s citizens and businesses.
Rao was raised in Michigan by parents who had immigrated from India. She attended the University of Chicago law school after getting her undergraduate degree from Yale. She clerked for Clarence Thomas, worked in George W. Bush’s White House counsel’s office, and served on the staff of the Senate Judiciary Committee before becoming a law professor.
Her résumé is practically out of Federalist Society’s central casting and she’s created a lengthy paper trail to vet her legal philosophy.
But therein lies the problem.
Senator Josh Hawley, joined by Senator Tom Cotton, was concerned about some of Rao’s paper trail. Hawley, Cotton, and others suspected that Rao might have an affection for substantive due process and would be bad on abortion rights. Substantive due process is a jurisprudential view that the Constitution protects certain rights and liberties even if those are not defined in the Constitution. Originalists and textualists are deeply critical of the concept because it has allowed federal judges to impose rights based not on the Constitution, but on their own inclinations.
It is not much of an exaggeration to say that substantive due process has been the mechanism by which the morality of Harvard Yard has frequently been forced on the whole of the nation by five of our blacked robed masters.
Hawley pointed to statements Rao has made in the past that seem to suggest an affection for Roe v. Wade and for substantive due process and claimed that someone told him that Rao had once characterized herself as pro-choice. For bucking the conservative consensus on this, Hawley got the side-eye from conservative allies who very much want Rao confirmed.
For starters, Hawley and Cotton should be commended for doing their jobs, studying Rao’s record, and not taking anyone else’s word for Rao’s own words. In an age where herd-like instincts often demand that politicians march, rather than think, it’s refreshing to see senators demanding more answers.
But as they get these answers, they are likely to be quite satisfied, because Rao is the perfect replacement for Kavanaugh. She has a record at OIRA of undercutting federal regulators and she has a long history in law of embracing originalism and textualism in her arguments.
One of the attacks against Rao is a 1998 University of Chicago law review article titled “A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court.” In it, Rao wrote that,
Perhaps, however, extra-legal sources can help judges to determine when a departure from past practice might be necessary—philosophy might be a vehicle for legal change. But legal reasoning includes its own processes for change, and reliance on the past does not bind judges to outmoded principles when social and political understandings have evolved.
That might sound damaging, but when you read the whole article you see that Rao was not adopting that view as her own, but explaining how some Supreme Court justices had used philosophers to ignore precedent. She goes on to note that “the Court never explains why Plato and Aristotle should be considered authority for such a controversial moral and political issue” and also that substantive due process has been “severely discredited.”
The pro-life Susan B. Anthony List, which had originally raised concerns about Rao, did its own investigation and decided that Rao would indeed be a good fit for the D.C. Circuit. Beyond that, Rao is also supported by dozens and dozens of colleagues and friends in the conservative movement over the years who know Rao and her thinking. They are nearly unanimous that she is a conservative stalwart, an opponent of substantive due process, and pro-life. Rao’s support extends beyond the Federalist Society into the heart of the conservative movement. If Ed Meese is for you, what conservative can be against you?
Ultimately, the fear seems to be that Rao is not really being vetted for the D.C. Circuit Court of Appeals, but for the Supreme Court. While that nervousness is understandable, that’s not actually the issue on the table. There is no current vacancy and the president is known to already have a list of people he would like to see on the High Court.
And on the issue at hand, Rao is exceedingly well qualified for this job. The D.C. Circuit Court of Appeals is the second most powerful court in the nation because it is the appellate court that hears most of the lawsuits involving abuse of government power and government regulations. There is no question, including from Hawley and others, about Rao’s convictions on government overreach.
In her private legal career, her tenure as a law professor, and as a public servant, Neomi Rao has shown great skepticism about the federal bureaucracy and the legal arguments on which that bureaucracy has expanded. Putting Rao on the D.C. Circuit Court of Appeals would be a solid check against government overreach.