The Battle Over Neomi Rao For the Court of Appeals Is the Latest in the Judicial Wars

National Review ^ | 02/06/2019 | Jonathan S. Tobin

[SeekAndFind]

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.

[SeekAndFind]

NOEMI RAO

Neomi Rao is President Trump’s nominee to the U.S. Court of Appeals for the D.C. Circuit

Age: 45

Current Position: Administrator, Office of Information and Regulatory Affairs (Washington, D.C.)

Education:

• B.A., Yale University; highest distinction (1995)
• J.D., University of Chicago Law School (2000); Order of the Coif; Comment Editor, Harvard Journal of Law & Public Policy; Executive Editor, Harvard Journal of Law & Public Policy (Symposium Edition)

Judicial Clerkship: Associate Justice Clarence Thomas, U.S. Supreme Court (2001-2002); Judge J. Harvie Wilkinson, U.S. Court of Appeals for the Fourth Circuit (2000-2001)

Professional Experience:

• Administrator, Office of Information and Regulatory Affairs (Washington, D.C.)
• Professor, Antonin Scalia Law School (Arlington, VA)
• Associate Counsel, Office of the White House Counsel and Special Assistant to George W. Bush, The White House (Washington, D.C.)
• Attorney, Clifford Chance LLP (London, UK)
• Counsel, U.S. Senate Committee on the Judiciary (Washington, D.C.)

Career Notes:

• Ms. Rao has served as Administrator of the Office of Information and Regulatory Affairs (“OIRA) since the beginning of President Trump’s administration. OIRA is located within the Office of Management and Budget (“OMB”) and oversees the implementation of government-wide policies and reviews draft regulations.
• Prior to joining the Trump administration, Ms. Rao was a tenured professor at Antonin Scalia Law School, where she founded the law school’s Center for the Study of the Administrative State. Rao’s academic scholarship focused on the political and constitutional accountability of administrative agencies and the role of Congress

Professional Associations:

• Ms. Rao is a Member of the Administrative Conference of the United States and serves on the Governing Council of the ABA Section of Administrative Law and Regulatory Practice.
• She is listed as an expert for The Federalist Society and has been a speaker and panelist on the topics including Administrative Law, National Security Law, and Presidential Power.

Biographical Notes:

• Ms. Rao is a first generation American whose parents were born in India. She is married to Alan Lefkowitz and has two children.

[Da Coyote]

“Republicans must stand up to Democrats’ attempt to damage a rising legal star.”

The spineless marshmallows do not have a sterling record in this regard.

We really do need a RINO guillotine.

Stat.

[entropy12]

Liberals democrats feel extremely threatened by ethnic non-European nominees. If they happen to be women, then that roils them exponentially more.

[Dr. Ursus]

Very impressive!

[PSUGOP]

Her life is a wonderful story. The Dems are clowns and cowards.

[Trumpisourlastchance]

We supposedly have 53 “Republican” senators plus Joe Manchin. What is the problem?

[SeekAndFind]

RE: We supposedly have 53 “Republican” senators plus Joe Manchin. What is the problem?

We IN EFFECT have 49 Republicans. I don’t consider Susan Collins, Lisa Murkowski, Cory Gardner and Mitt Romney to be Republicans.

[genghis]

I love her already

[Jacquerie]

<>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.<>

Thank the 17th Amendment.

[Bratch]

Thank the 16th Amendment.

It makes bribing every state legislature to get preferred Senators look like a smart investment for the Deep State, since it would give them access to the near limitless money the federal government takes in, thanks to the Income Tax.

Everyone wants a piece of it.

[Jacquerie]

No, I’ll thank the 17th. Thanks to the 17th, Scotus went along with progressive income taxes in violation of the 14th Amendment. A single income tax rate applicable to all poses no danger.

Absent the 17th, the federal courts would be practically devoid of Prog judges hostile to the 9th and 10th Amendments.

[sergeantdave]

Key phrase: Congress’s abdication of its constitutional responsibility to legislate has made the executive branch’s administrative-state powers the source of law.”

One of the primary tenets of a dictatorship is the ability of unelected bureaucrats to write, enforce and judge law.

Congress is too stupid to realize that this element of functionairies illegally writing law is one of the primary justifications for our Revolutionary War.

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” - Declaration of Independence