Panel Advances Pick to Replace Kavanaugh on DC Bench

Neomi Rao, President Donald Trump’s nominee for a seat on the D.C. Circuit Court of Appeals, appears before the Senate Judiciary Committee for her Feb. 5, 2019, confirmation hearing, on Capitol Hill in Washington. Liberal activists are targeting Rao for what they call her extreme views on race, sexual assault and LGBT rights. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) – Overcoming last-minute concerns from Republicans about her views on abortion, the Senate Judiciary Committee on Thursday approved the nomination of Neomi Rao to replace Supreme Court Justice Brett Kavanaugh on the D.C. Circuit.

Like most of President Donald Trump’s nominees to federal appeals courts, Rao cleared the committee in a 12-10 party-line vote. But Rao’s vote came with unusual drama, as some Republicans expressed concerns about her views on abortion in the days leading up to Thursday’s vote.

Rao currently is the administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget, where she serves as the point person for the Trump administration’s regulatory policy agenda.

Rao gained a reputation as an expert in administrative law during her time as a professor at George Mason University’s Antonin Scalia Law School. In 2015 she founded the Center for the Study of the Administrative State at the school and worked as the program’s director until she left for OMB in 2017.

Despite her sterling conservative record on issues of administrative law, Senator Josh Hawley, a Missouri Republican who sits on the Judiciary Committee, raised questions about her views of abortion and substantive due process, the legal doctrine the Supreme Court relied on when establishing a constitutional right to abortion in Roe v. Wade.

The substantive due process doctrine comes out of the Fifth and 14th Amendments and prevents the government from infringing on certain rights, even if they are not explicitly listed in the Constitution. The Supreme Court has relied on this legal doctrine, widely criticized by conservatives, in cases touching on issues from gay rights to abortion.  

In questions submitted in writing after Rao’s nomination hearing, Hawley, who is in his first months as a senator, pressed Rao on her views of the doctrine, but like most judicial nominees, Rao declined to answer directly. Axios reported earlier this week that Hawley had “deep concerns” about Rao’s views, reservations shared by other Republicans.

Speaking at a Judiciary Committee meeting Thursday, Hawley said he met in private with Rao twice and extensively reviewed her academic record. He said a meeting on Wednesday was “particularly productive” and gave him confidence in her judicial approach.

“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. “She said the text of the Constitution is fixed and the meaning must follow that fixed text.”

He said Rao told him that in her view, substantive due process “finds no textual support in the Constitution.”

Hawley faced outside pressure from conservatives to support Rao’s nomination in recent days, including from the Wall Street Journal’s editorial board. Hawley fended off the criticism in his speech Thursday, saying he would “thoroughly vet” every nominee that faces a vote in the committee. 

Senator Ted Cruz, R-Texas, said Thursday he shared some of Hawley’s concerns and specifically noted that if Rao were up for the Supreme Court, rather than the D.C. Circuit, he might think differently about her nomination. By virtue of its specific jurisdiction, the D.C. Circuit rarely hears abortion rights cases.

Rao is considered a potential Supreme Court pick if Trump has another vacancy to fill on the high court.

Senator Joni Ernst, R-Iowa, also said she would think differently if Rao were nominated to a different court, citing controversial writings from Rao’s time as an undergraduate. Those articles were critical of feminism and were seen as blaming women who are victims of date rape.

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