Bench Memos

Law & the Courts

From OIRA to the D.C. Circuit?

Senate confirmation of Associate Justice Brett Kavanaugh has opened up a seat on the U.S. Court of Appeals for the D.C. Circuit for President Trump to fill. This presents a tremendous opportunity. This morning, Axios reported that President Trump has interviewed Neomi Rao for the nomination. She would be an excellent choice.

Rao currently serves as Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget. As such, she is the administration’s “regulatory czar”. In this role, she oversees implementation of the Administration’s deregulatory agenda and regulation-related Executive Orders. Given that regulatory matters make up the lion’s share of the D.C. Circuit’s docket, she would be a perfect fit for this court.

Prior to joining the Administration, Rao was a professor at the George Mason University Antonin Scalia Law School. She also worked in White House Counsel’s office during the George W. Bush Administration, and for the Senate Judiciary Committee. She is a graduate of Yale University and the University of Chicago Law School, and clerked for Justice Clarence Thomas and Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit.

In the 1980s, the Reagan Administration recognized the importance of the D.C. Circuit and, in particular, the value of adding intellectual firepower to the court through the nomination of academics. This strategy resulted in the nominations of Antonin Scalia, Robert Bork, Douglas Ginsburg, and Stephen Williams to this court. Nominating Neomi Rao would be a choice in this mold. She is a brilliant lawyer and would add substantial intellectual firepower to the D.C. Circuit. I may be biased, as I have known her for over twenty years, but I find it hard to imagine a better pick to fill the Kavanaugh seat.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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