Trump Nominates OMB Official to Fill DC Circuit Vacancy

WASHINGTON (CN) – President Donald Trump on Tuesday announced he will be nominating an Office of Management and Budget official to the D.C. Circuit seat once held by Supreme Court Justice Brett Kavanaugh.

Neomi Rao currently works as the administrator of the Office of Information and Regulatory Affairs, having been confirmed to the position in a 54-41 vote last year. Rao previously worked as counsel to the Senate Judiciary Committee and served as associate counsel to President George W. Bush.

A former clerk for Justice Clarence Thomas, Rao has developed an expertise in administrative law, having founded the C. Boyden Gray Center for the Study of the Administrative State at George Mason University, where she worked as an associate professor before entering the Trump administration.

In testimony before the Senate Subcommittee on Regulatory Affairs and Federal Management in March 2016, Rao suggested taking a second look at the way courts decide when to defer to administrative agencies’ decision-making. Rao said the ease with which courts defer to administrative agencies, coupled with Congress’ increasing willingness to delegate authority to the executive branch, has upset the balance between the branches envisioned in the Constitution.

Rao argued the traditional justification of judicial deference that relies on the executive and legislative branch competing and limiting each other’s power has fallen short.

“Instead of prompting Congress to jealously guard its lawmaking power from the executive, deference can encourage Congress to delegate and shape administration outside of the scrutiny of the courts,” Rao wrote in prepared testimony. “Since Congress often does not compete in the way the conventional view assumes, deference can merely ratify collusion between the political branches. The fact that the structural checks and balances have not limited delegations suggests one reason for less deferential judicial review.”

This questioning of the court’s approach to administrative law has been a recurring theme among Trump’s judicial nominees, including Kavanaugh and Justice Neil Gorsuch. Poised to take a seat on a court that is the primary venue for challenges to agency decisions, Rao’s view of this area of law is sure to draw scrutiny during her confirmation process.

Trump made the announcement at a Diwali celebration at the White House on Tuesday and indicated he got ahead of an official roll out planned for later this week.

“I won’t say today that I just nominated Neomi to be on the D.C. Circuit Court of Appeals, the seat of Justice Brett Kavanaugh, so that could be a big story,” Trump said. “We were going to announce that tomorrow and I said here we are Naomi, we’re never going to do better than this. I thought it was an appropriate place. So we’re 24 hours early but she’s going to be fantastic.”

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