Law & the Courts

The Battle Over Neomi Rao Is the Latest in the Judicial Wars

Neomi Rao reacts after President Donald Trump announced that he is nominating her to replace Supreme Court Justice Brett Kavanaugh on the D.C. Circuit Court of Appeals in Washington, D.C., November 13, 2018. (Jonathan Ernst/REUTERS)
Republicans must stand up to Democrats’ attempt to damage a rising legal star.

The battle to confirm Brett Kavanaugh to the Supreme Court should have taught Republicans that any lingering illusions about civility or fair play go out the window when it comes to the efforts of Democrats to derail conservative nominees. But this week, the ongoing struggle for control of the courts may take another step yet further into the partisan abyss as hearings begin for his replacement on the D.C. Circuit Court of Appeals. President Trump’s nominee, Neomi Rao, may have a sterling reputation as a legal scholar, but attacks on her past show just how far and how low liberals will go to take down a potential future Supreme Court nominee.

Leaving aside personal attacks and attempts to mischaracterize her views, liberals have good reasons to fear Rao. The former professor at George Mason University’s Antonin Scalia Law School has spent the last 18 months presiding over one of the Trump administration’s signal triumphs. As the administrator of the White House’s Office of Information and Regulatory Affairs, Rao has been responsible for Trump’s regulatory-reform campaign. In that capacity she has help shepherd a successful effort to roll back the Obama administration’s vast expansion of the administrative state via countless new government regulations on businesses. As much as, if not more than, the tax-reform package passed by Congress in 2017, Trump’s regulatory-reform program has fueled economic growth and engendered the optimism about the future that has sustained it.

Given that, Rao is positioned to play a key role in the effort to restrain the growing power of the administrative state that threatens both individual liberty and the chances for sustained economic growth. But while she can expect questions about her role in rolling back the power of the federal leviathan over the lives of Americans, most of the attention  focused on her has been for the purpose of falsely painting her as an extremist. Liberal opponents such as the People for the American Way are calling her a “reactionary,” the author of “inflammatory statements” that call into question her support for civil rights or her opposition to date rape and mistreatment of dwarfs.

The material for the opposition-research dump comes largely from Rao’s writing while in college. At Yale, she wrote pieces calling into question racial preferences and affirmative action. But since as a woman she is likely not vulnerable to the sort of unsubstantiated allegations of sexual misconduct that nearly destroyed Kavanaugh, left-wing opponents are reduced to mischaracterizing one article about date rape. In that piece she pointed out that, while all rapists must be punished, women could reduce their chances of being a date rape victim if they avoided drinking to excess and thereby putting themselves at the mercy of predators.

That may sound like nothing more than basic common sense, but viewed through the circus mirror of left-wing orthodoxy, it is being represented as, in the words of a Politico article, “skepticism of date rape claims.” While it is, as the Wall Street Journal noted in an editorial, highly ironic that the same liberals who pilloried Kavanaugh for drinking beer in high school and college are now damning Rao for advocating sobriety, accusations of hypocrisy are not likely to deter those seeking to derail her career.

Of greater intellectual interest, though perhaps just as emotional, is the attempt to portray falsely a piece she wrote for the legal blog Volokh Conspiracy in 2011. There she argued that bans on activities that strike most people as degrading can impose wrongful restraints on the freedom and the dignity of individuals. For an example, she noted that the bizarre practice of “dwarf tossing” may seem disgusting and an affront to those who allow themselves to be exploited in that manner. But, she argued, that should not cause the state to pass a law seeking to prevent any individual dwarf who would choose to profit from such activities. The same could be said for those who freely to chose to take part in prostitution or pornography. Rao argued that the same reasoning — “they degrade women” — that may lead France or other countries to ban burqas impinges on the religious liberty of women who embrace the full-body covering as a practice of their faith.

While not making a case for the legitimacy or rightness of any of these practices, Rao argued that laws empowering the government to protect the dignity of little people or of women are also a threat to the individual liberty of those who well-meaning liberals believe need to be saved from themselves. But instead of recognizing the sophisticated and insightful legal arguments behind her thinking, liberals are trying to paint Rao as a right-wing ideologue who is an enemy to the rights of little people.

But the motivation behind the dive into her vast library of legal writings isn’t a crusade against date rape or against abuse of dwarfs. Democrats understand that if Rao, a formidable legal thinker, becomes the first Indian-American woman on the Court of Appeals, she will immediately move onto the short list of possible Supreme Court nominees should President Trump have another opportunity to replace one of the existing justices.

In anticipating the next battle over the future of the Supreme Court, conservatives are as guilty as liberals, even though there is no likelihood that Trump will have a chance to nominate another justice. Justice Ruth Bader Ginsburg has been ill recently, but the indomitable liberal icon has reportedly been recovering nicely and likely has every intention of waiting until there is a Democrat in the White House before considering retirement. Any speculation about her exit from the Court is both in bad taste and probably futile.

Speculation that Rao, or any potential nominee whose name is currently on the list compiled by the Federalist Society from which Trump has already drawn Justices Neil Gorsuch and Kavanaugh, might someday be tapped for a Supreme Court vacancy is premature, but the willingness of liberals to go all out against an appellate nominee in this fashion underlines the stakes in the struggle to control the courts.

Not long ago the two parties judged appellate nominees on their legal merits, as opposed to regarding them as political pawns and reserving knockout fights and partisan defamation for Supreme Court nominations. Those days are over. Liberals know that the best way to stop or substantially damage Rao is now, before she accumulates the experience, on the nation’s second-most-important court, that would make her an impressive choice for the Supreme Court. Just as a sterling résumé and a seemingly blameless life did not protect Kavanaugh from unprecedented smears, so, too, must Rao and any other conservative nominee expect the kitchen sink and then some to be thrown at them in the hope that something will stick.

The courts have assumed greater importance in our political system precisely because Congress’s abdication of its constitutional responsibility to legislate has made the executive branch’s administrative-state powers the source of law. Only the federal courts have the power to restrain the executive, which is why Rao’s unique knowledge of the administrative state makes her a potentially lethal foe to unrestrained government power.

Senate Republicans must understand that they must adopt the same sort of intolerance for unfair attacks on conservatives that caused Senator Lindsey Graham to boil over in an epic rant during the Kavanaugh hearing. Even if she never makes it to the Supreme Court, confirming Rao and other Trump appellate nominees is every bit as crucial to the future of American freedom as the battles over Gorsuch and Kavanaugh.

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