Kavanaugh Successor Confirmed to DC Circuit Bench

WASHINGTON (CN) – The Senate on Wednesday confirmed President Donald Trump’s pick to replace Supreme Court Justice Brett Kavanaugh on the D.C. Circuit, putting the overseer of the administration’s regulatory agenda on a court that is the primary venue for challenges to federal agency actions.

Neomi Rao, President Donald Trump’s nominee for a seat on the D.C. Circuit, appears before the Senate Judiciary Committee on Tuesday, Feb. 5, 2019. (AP Photo/J. Scott Applewhite)

Neomi Rao, who was confirmed in a 53-46 vote Wednesday afternoon, has served as the administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget since 2017, acting as the point person for agencies’ changes to federal regulations.

A member of the conservative Federalist Society, Rao has made a name in academia for her expertise in administrative law. In 2015 she founded George Mason University’s Center for the Study of the Administrative State and worked as the program’s director until she left for her position in the Trump administration.

By virtue of its location and unique jurisdiction, the D.C. Circuit is the primary venue for challenges to agency regulatory decisions, giving Democrats pause about Rao’s potential influence on the bench.

A sizable portion of Rao’s academic work focused on the interaction between administrative agencies and other branches of government. Democrats drilled down on Rao’s views of legal doctrines that determine how much room courts give administrative agencies when they issue regulations. 

“I do think it’s important when looking at one of these cases to consider the statute for all that it’s worth,” Rao said during her nomination hearing in February. “And sometimes a provision that may seem ambiguous at first blush is not ambiguous when you really take into account the statute as a whole, its structure, how the provisions relate to one another. I think there is usually a lot of meaning that can be found in the text of the statute.” 

Senators particularly questioned Rao on changes the Trump administration has made to federal regulations regarding the handling of sexual assault and harassment on college campuses, changes to fuel standard requirements and various environmental standards.

Rao also overcame opposition from several Republicans that briefly appeared to threaten her confirmation over her views of substantive due process, the legal doctrine on which the Supreme Court has based decisions in cases touching on issues from gay rights to abortion.

Senator Josh Hawley, R-Mo., raised concerns ahead of a vote in the Judiciary Committee about her views of the doctrine, which has long been criticized by conservatives. Hawley met with Rao ahead of the committee vote and ended up supporting her, saying she told him substantive due process “finds no textual support in the Constitution.”

“In our discussion she said that she would interpret the Constitution according to its text, structure and history, not according to changing social and political understandings,” Hawley said at a Judiciary Committee meeting at the end of February. “She said the text of the Constitution is fixed and the meaning must follow that fixed text.”

Rao also faced numerous questions about controversial articles she wrote as an undergraduate  that were critical of feminist movements, the handling of  sexual assault on campus and other hot-button issues.

In one article from 1994, Rao suggested victims of date rape might have some level of culpability in the assault committed against them.

“Unless someone makes her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink,” Rao wrote. “And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”

Rao apologized for the writings both at her hearing and in a letter to the committee later in the month, saying she has since gained more life experience and education that has influenced her views on the issues she wrote about as a college student.

“I have not written or spoken about issues of rape or sexual assault since college,” Rao wrote to the committee. “If I were to address these issues now, I would have more empathy and perspective.”

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