Law & the Courts

The Kavanaughing of Neomi Rao

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)
Rao is an outstanding nominee who, like many other conservatives, is not being attacked for her faults, but for her virtues.

If you were to design a perfect judge for the D.C. Circuit Court of Appeals in a laboratory, that judge would look like Neomi Rao. The D.C. Circuit, the nation’s second most important court, is the leading court in which administrative-law decisions are made and one that has exclusive jurisdiction over many federal regulatory agencies. As it happens, Rao currently serves as an extraordinarily effective head of the U.S. Office of Information and Regulatory Affairs (OIRA), from which she spearheads the Trump administration’s approach to regulatory policy.

Rao came to OIRA with deep expertise in regulatory policy, having founded the Center for the Study for the Administrative State at George Mason. A graduate of Yale and the University of Chicago Law School, she clerked for Justice Thomas and the highly respected appeals-court judge J. Harvie Wilkinson.

Rao can view legal issues not just from the perspective of her current perch, but also as a former counsel to Senator Orrin Hatch (R., Utah) on the Senate Judiciary committee and as a counselor to former president George W. Bush. Furthermore, she has valuable experience in private practice both domestically and internationally.

But beyond her sterling qualifications and background, I have a bit of a different perspective on her nomination, as I have known Neomi Rao since we were 18-year-old freshmen at Yale. We were both very active in the Yale Political Union, the often-fractious central clearinghouse for campus politics where Neomi was the opposite of a bomb thrower. As a political conservative on a predominantly liberal campus (a tribe I wouldn’t join until after my college years), Neomi stood out. But while there were no shortage of liberals and conservatives at Yale who enjoyed being provocative, even obnoxiously so, Neomi was not among them.

Instead Neomi, who even as an 18-year-old was serious and interested in ideas, was unfailingly collegial to students of all different backgrounds, experiences, and political perspectives. Unlike so many of my classmates, I never saw her lose her temper or composure in a political disagreement.

While Rao is unanimously supported by all of her conservative campus contemporaries of whom I am aware, it is notable that a letter in support of her nomination among our classmates was circulated to me by a confirmed Trump-hater who has given to the Democrats in six figures, and was also signed by many other students who may not share Neomi’s political views, but appreciate her fundamental decency and integrity.

Little surprise that, faced with the possibility of having a supremely qualified 45-year-old Indian-American woman in such a prominent position, D.C.’s left-wing groups are waging an all-out campaign to stop her nomination.

For this reason, the hit pieces came out early in an explicit political strategy, as noted in a recent article in Politico and elsewhere. Left-wing organizations such as People for the American Way accused Rao of having a “dangerously reactionary view of the Constitution,” while the hyperventilating NAACP called her nomination “an insult to all Americans,” inventing a nonexistent history of Rao’s supposed “years of vile comments against our most vulnerable communities” that seemed to focus particularly on Rao’s opposition to affirmative action and other race-based preferences.

Having little of substance to actually attack in Neomi’s professional career and legal writings, most of these shameless hit pieces target Rao’s student writings as a Yale undergraduate for various campus newspapers, ridiculously mischaracterizing them in the process and declaring her, inter alia, “an apologist for sexual assault.”

While one hesitates to even treat such obviously political attacks as representing something intellectually serious, It is rather remarkable that these alleged “feminists” leveling such critiques seem to feel that young women are incapable of taking any sort of responsibility for their own actions and thus must be heavily protected, an attitude toward women that is more Victorian than it is modern and is certainly the antithesis of the message of female empowerment I want to teach my daughters as they grow up.

“A man who rapes a drunk girl should be prosecuted. At the same time, a good way to avoid a potential date rape is to stay reasonably sober.” — reads one allegedly offensive passage. For the extreme leftists in our media and academia, such statements may signify that the world of The Handmaid’s Tale is nigh. But if you’re a sane or normal person, this is exactly the sort of common sense you’d like your own kids to embrace.

Further, examining Rao’s other allegedly “controversial” college writings on subjects like affirmative action and feminism, one simply encounters a thoughtful and unapologetic conservative, one who was brave enough to ask difficult questions and question liberal orthodoxies that prevailed at Yale, then as now. In these campus publications, we were students writing for other students, discussing our views, and trying to convince our friends of our positions. Even for those who might find an occasional sophomore opinion of Rao’s to be sophomoric — well, if everyone who wrote anything disagreeable in a student publication was banned from public office, we’d lose almost everyone to public life who wrote anything interesting at all and be stuck with hopeless bores and hackish careerists who were so busy plotting their world takeover at age 18 that, like Bill Clinton, they were already parsing every word and action to ensure their “political viability within the system.”

In contrast, the sort of willingness to participate in intellectual give and take with those who think differently, such as Neomi did constantly in college, is exactly what we should be looking for from a federal judge.

The Wall Street Journal editorial page understands the stakes of Rao’s nomination, which is why they have weighed in in strong support of her and against the Left’s thuggish tactics. The Journal is absolutely right that “If the Senate rejects a nominee as qualified as Ms. Rao, it will have descended one rung lower in the confirmation inferno.” Conservatives need to be paying attention — Rao is an outstanding nominee who, like many other conservatives, is not being attacked for her faults, but for her virtues.

More important, failure to confirm Rao will be yet another blow against political civility in D.C. As Fox’s Stuart Varney noted in his take on Rao for Fox News, “How long are we going to tolerate the sliming of decent people?”

I can testify first-hand that Neomi, besides having an outstanding professional background and judicial temperament, is a thoroughly decent person.

The entire country will benefit from her intellect — and her decency, if the GOP Senate caucus stays strong and confirms her to the D.C. Circuit.

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