Bench Memos

Neomi Rao’s Inflammatory Critics

The re-nomination of 51 of President Trump’s judicial nominees announced last night includes Neomi Rao, who is designated to fill the seat on the D.C. Circuit vacated by Justice Brett Kavanaugh when he joined the Supreme Court.

Rao’s experience speaks for itself. A graduate of Yale University and the University of Chicago Law School, she clerked for Judge J. Harvie Wilkinson and Justice Clarence Thomas and served in both the White House Counsel’s office and Senate Judiciary Committee staff before joining the faculty of George Mason University School of Law, where she founded the Center for the Study of the Administrative State. Over the last two years, she has applied her expertise in administrative law with distinction as President Trump’s administrator of the Office of Information and Regulatory Affairs (OIRA), where she has been a leader of the administration’s regulatory reform initiatives.

She is, in short, an extraordinarily qualified nominee for the D.C. Circuit—the court that takes the lion’s share of appeals on complex questions that arise in cases involving federal agencies. Which is why some on the left, having opposed her nomination since it was first announced in November, are already scrambling for a pretext to defeat her nomination.

All they have come up with, recounted in a recent BuzzFeed News story, is a charge summarized in the headline: the nominee supposedly “wrote inflammatory op-eds in college,” specifically during the mid-1990’s. Take that as one hint that the opposition might be born of desperation. Another is that the issue was raised by the liberal advocacy group Alliance for Justice (AFJ), which is known for making kitchen-sink arguments against judicial nominees known or suspected to be conservative, and parroted by BuzzFeed with little apparent reflection.

But since college writings were used in the recent past by Democrats to demagogue a judicial nomination, it is worth reviewing the writings in question, no matter how willful the distortions involved.

In a 1994 op-ed Rao wrote in college touching on the issues of drinking and date rape, AFJ selectively and inaccurately quotes her statements to paint her in the worst light possible.  AFJ president Nan Aron accuses Rao of “comments hostile to sexual assault survivors.” That is an irresponsible takeaway from a column that unequivocally asserted, “Clearly, if the male student forced the woman to have sex against her will, then he should be held responsible,” and reiterated a second time, “A man who rapes a drunk girl should be prosecuted.”  AFJ also omits the fact that Rao described herself as a feminist during her college years.

Rao has come under fire by the left for the following from another 1994 column:

Underneath their touchy-feely talk of tolerance, [multiculturalists] seek to undermine American culture. They argue that culture, society and politics have been defined—and presumably defiled—by white, male heterosexuals hostile to their way of life. For example, homosexuals want to redefine marriage and parenthood; feminists in women’s studies programs want to replace so-called male rationality with more sensitive responses common to womyn. It may be kinder and gentler, but can you build a bridge with it?

BuzzFeed quotes this without including what immediately followed: “Understanding your roots is important, but it can become a dangerous obsession.” Rao then cited an example: “ethnic fraternities and sororities make separation a requirement for membership,” a form of segregation that “teach[es] students that racial and ethnic identity cannot coexist with the dominant U.S. culture. . . . To the multiculturalists, the [Martin Luther] King message seems naive and idealistic.”

Rao had introduced Dr. King even before the selectively quoted paragraph, and it seems pretty clear that the goal of her piece was to embrace his dream “that one day people would be judged by the content of their character, not by the color of their skin.” She then complained about the use of certain epithets: “So-called conforming blacks are called ‘oreos’ by members of their own community, conservatives become ‘fascists.’” BuzzFeed quoted only the last sentence and none of what came before it.

Aron accuses the young Rao of making “racially insensitive statements,” which is a dishonest accusation to make against someone who was clearly criticizing such a statement. BuzzFeed twice indulges AFJ by failing to include the broader context of Rao’s embrace of Dr. King’s integrationist principles and, conversely, her criticism of campus segregation.

Not surprisingly, BuzzFeed also notes Rao’s distaste for affirmative action with similarly isolated quoted phrases from her, including most prominently a 1996 article about the writings of economist Thomas Sowell in which she used the phrase “anointed dragon of liberal excess.” As is only clear from reading the cited article, “anointed” was a reference to Sowell’s book The Vision of the Anointed. “Dragon” was the term used by University of Chicago law professor Richard Epstein in his review of Sowell’s book, in which he asked (as Rao quotes) whether trying to end affirmative action, a policy that was already being swept back, was “seeking to slay a dragon already dead.”

Acknowledging the fuller context of these writings reveals that Rao’s writings have been intentionally distorted for the purpose of destroying her reputation—and that it is her critics who are being inflammatory. Rao’s own status as a racial minority adds hubris to Aron’s charge of racial insensitivity.

Note to Republican senators, which is especially fitting the week our nation celebrates the birthday of Martin Luther King: If Senate Democrats read from AFJ’s demagogic script, don’t let them get away with it.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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