Senate Panel Grills Trump Pick to Replace Kavanaugh

WASHINGTON (CN) – Senators on Tuesday grilled President Donald Trump’s nominee to replace Brett Kavanaugh on the D.C. Circuit over controversial articles she wrote about date rape, feminism and other hot-button cultural issues as an undergraduate student, as well as on her views on the role of administrative agencies and the regulations they issue. 

Neomi Rao, administrator of the Office of Information and Regulatory Affairs, smiles on Nov. 13, 2018, as President Donald Trump announces his intention to nominate her to fill Brett Kavanaugh’s seat on the D.C. Circuit. (AP Photo/Evan Vucci)

Since 2017, Neomi Rao has served as the administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget, putting her at the leading edge of the Trump administration’s rollback of numerous federal regulations. Trump nominated her in November to fill Supreme Court Justice Brett Kavanaugh’s seat on the D.C. Circuit.

During a hearing before the Senate Judiciary Committee that lasted nearly three hours Tuesday, Rao faced numerous questions about her work in the office. Senator Dianne Feinstein, the top Democrat on the committee, expressed concerns about Rao’s views on administrative law and her role in the Trump administration’s moves to eliminate federal regulations on issues from clean air standards to workplace safety recordkeeping requirements.

“As noted, the D.C. Circuit hears most challenges to federal regulations, thus if confirmed, Ms. Rao could be in a position to decide cases about many of the very regulations that she has personally worked on,” Feinstein, a California Democrat, said Tuesday. 

In her career as both an academic and in government, Rao has been a critic of the increasing role of executive branch agencies, something of a theme among the judges Trump has nominated in his time in office. 

Before taking the job in the Trump administration, Rao was a professor at George Mason University’s Antonin Scalia Law School, a position from which she is now on leave. Rao founded the school’s Center for the Study of the Administrative State and has penned law review articles decrying Congress’ willingness to delegate powers to the executive branch and questioning the constitutionality of independent agencies.

The D.C. Circuit, which is often referred to as the second most powerful court in the country, is the primary venue for challenges to executive agency decisions, putting Rao in a position to influence that particular area of law, much as the man she would replace did during his time on the appeals court bench. 

Democrats on the Senate Judiciary Committee took aim at her views on the judicial doctrines under which courts defer to executive agencies in disputes over the regulations they issue. She said she would follow the Supreme Court’s precedents on judicial deference standards and would follow recusal rules when confronted with a case touching on the administration’s regulatory agenda. 

Rao also suggested courts should read more carefully into laws before declaring them ambiguous, which is a key finding courts must make before deferring to administrative agencies’ interpretation of statutes under the so-called Chevron deference.

“I do think it’s important when looking at one of these cases to consider the statue for all that it’s worth,” Rao said. “And sometimes a provision that may seem ambiguous at first blush is not ambiguous when you really take into account the statue 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 a statute.”  

A member of the conservative Federalist Society, Rao has also faced criticism for a series of articles she authored as an undergraduate student at Yale. She was critical of feminist movements in the articles and said a good way for college women to avoid being victims of rape “is to stay reasonably sober.”

“Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink,” Rao wrote in one article from 1994. “And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.” 

When pressed on the writings by senators Tuesday, Rao backed away from the decades-old comments. The daughter of immigrants from India, Rao said she was being “idealistic” about race relations when she wrote critically of multiculturalism and that some of the language she chose now makes her “cringe.”

“I’ve had a lot of experience since that time writing in college and I don’t think I would express myself in the same way,” Rao said. “These are horrible crimes and I wouldn’t write anything that might be implied to blame the victim or make it less likely for a victim to come forward.” 

When pressed on the article discussing date rape, Rao said she was not trying to blame victims, but rather was trying to make a “common-sense” point that excessive drinking can lead to risky behavior for both men and women.

“It’s the advice my mother gave me, it’s the advice that I would give my children,” Rao said. 

She also backed away from her past criticism of climate change science, saying there is “overwhelming scientific consensus” that the climate is changing and humans are contributing to the changes. 

But Democrats were not particularly satisfied with her answers, saying her explanations are hard to square with her college writings.

“Your earlier writings raise questions about your values and how many of those you bring to the table today and are going to take into the future into the courtroom,” Senator Dick Durbin, D-Ill., said. “And I think those are legitimate inquiries on our part.”  

Rao received a well-qualified rating from the American Bar Association just before her nomination hearing, but she faced some questions about whether she has the experience necessary to serve on the appeals court. 

Rao told Senator Patrick Leahy, D-Vt., that while she has never tried a case in a courtroom, her work in the executive branch and as an academic has given her a special expertise in the area of administrative law, which will be particularly important given the D.C. Circuit’s docket.  

Rao’s hearing is the first the Judiciary Committee has held this year. Senators will now submit questions in writing for the nominee and the Judiciary Committee will vote on her nomination in the near future before the full Senate considers whether to confirm her.

Given the Republican majority in the Senate, Rao is likely to be confirmed absent significant defections in the party. 

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