WASHINGTON — President Donald Trump's pick to replace Brett Kavanaugh as a judge on the D.C. Circuit Court of Appeals is expected to face tough questioning from Democrats on the Senate Judiciary Committee on Tuesday over what they say is a career of advocating an expansive view of presidential power and working on the widespread rollback of regulations.
If confirmed, Neomi Rao would sit on one of the most important courts in the country and one that has been a springboard to the Supreme Court. Her confirmation hearing Tuesday provides Democrats with the opportunity to press her about her views on the environment, affirmative action, gender parity, sexual harassment and the government’s role in these issues.
In previous writings, as Democrats have noted, she has been critical of the environmental movement, and suggested that women who drink at college parties bear some responsibility if they are sexually assaulted.
Rao is the administrator of a little-known but powerful office in the executive branch, the Office of Informational and Regulatory Affairs. In that role, which is often called the “regulatory czar,” she has been instrumental in Trump’s rollback of government regulations at the Education Department, the Environmental Protection Agency, the Interior Department and more.
“One of our primary concerns is that in a lot of areas relating to the important subject of government protections we’ve seen since the New Deal, she is more extreme than the person she will replace — Brett Kavanaugh,” said Elliot Mincberg, senior fellow with the People for the American Way, a progressive judicial oversight organization.
Because the D.C. Circuit has jurisdiction over federal agencies and plays a major role in interpreting the role of agencies, Congress and the regulatory state, Republicans say she is superbly qualified for a seat on the bench.
“She is right out of central casting as the person you would imagine to be nominated for this position,” said Carrie Severino, the chief counsel and policy director of the conservative Judicial Crisis Network.
Rao, 45, a Chicago Law School and Yale University graduate, has spent much of her career as a professor at the conservative George Mason University's Antonin Scalia Law School, where she founded the Center for the Study of the Administrative State. After law school, she clerked in 2001 and 2002 for Supreme Court Justice Clarence Thomas. Missing from her resume is trial or courtroom experience, which Democrats say is a concern.
Democrats also point to positions she espoused in writings as an undergraduate at Yale, insisting that those views persist today.
"She’s opined in various ways that lead me to question LGBTQ rights, for women, for regulatory protections," Sen. Mazie Hirono, D-Hawaii, said.
In one article, titled "Yale's Powerful Environmental Movement," Rao criticized environmentalists who warned against the “three major environmental boogeymen” of greenhouse effects, the depletion of the ozone layer and acid rain. Democrats say those positions are similar to her views today, pointing to her current role ushering in the deregulation of coal emission, maritime water protection, methane emissions, greenhouse gas emissions and more in the Trump administration.
They also point to an article in the Yale Herald, titled, “Shades of Gray,” in which she posited that sexual assaults at college parties might be avoided if women didn’t drink too much. She wrote that “a good way to avoid a potential date rape is to stay reasonably sober.”
While Republican advocates point to the line in that article where she also wrote that “a man who rapes a drunk girl should be prosecuted," as proof that she didn't blame women for being assaulted, Democrats plan to once again make a connection between her college writings and her current career.
They point to changes in Title IX Sexual Assault regulations under her watch that narrow the definition of sexual assault, places the burden on the victim to prove the assault in order for a school to respond and also raises the bar of proof.
She also wrote in law school that Affirmative Action preferences “assume that racial minorities need different or special opportunities in order to get to equal outcomes.” Democrats are likely to ask Rao about the repeal of an Obama-era role that encouraged Affirmative Action.
Democrats point to her expansive views of presidential power as another concern. She told conservative talk radio host and MSNBC contributor Hugh Hewitt, according to research conducted by Judiciary Committee Democrats, that every presidential appointee on an independent agency, such as the Federal Reserve, should answer to the president because “Article II of the Constitution vests all executive power in the president.”
While Democrats hope to raise questions about a nominee who could one day be a Supreme Court selection, Rao most likely at this point has the 50 votes needed for confirmation in the GOP-controlled Senate.