WASHINGTON — Judicial nominee Neomi Rao defended herself Tuesday against tough questioning from members of both parties on the Senate Judiciary Committee and expressed "regret" for some of her past writings, which she said in retrospect make her "cringe."
Nominated by President Donald Trump to replace Supreme Court Justice Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia, Rao was grilled about her views on gender parity and sexual assault as expressed in articles she wrote in college. Democrats have focused on those writings in their opposition to confirming her to one of the most powerful courts in the country, one that can be a springboard to the Supreme Court.
Rao, 45, attended Yale University and often wrote about date rape, sexual assault and the responsibility of those involved. At times, she placed the onus on women to “accept responsibility.”
She was asked repeatedly about one article in the Yale Herald, headlined, “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.”
Two dozen activists showed up at the hearing room Tuesday in protest, wearing T-shirts emblazoned with that quote.
Rao insisted on Tuesday that “no one should blame a victim” of sexual assault, but she also said some of what she wrote amounted to “common sense observations” that would make women less likely to be a victim of assault.
Sen. Joni Ernst, R-Iowa, who is a victim of rape and sexual assault, said that some of Rao’s college writings give her “pause.”
“I’m not going to mince words,” Ernst said, who is one of two women appointed to the Judiciary Committee in the new Congress after having no GOP women on the committee in the last. “I’ve had a chance to review a number of writings while you were in college, and they do give me pause, not just from my personal experience, but regarding a message we are sending young women everywhere.”
In another, titled “The Feminist Dilemma” for the Yale Free Press, Rao wrote, “just as women want to control their education and then choose their career, similarly, they must learn to understand and accept responsibility for their sexuality.”
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In the same article she wrote that anti-feminism academic Camille Paglia "accurately describes the dangerous feminist idealism which teaches women that they are equal.”
Ernst asked Rao if she doesn’t think women are equal.
“I very much regret that statement,” Rao said. “I’m honestly not sure why I wrote that in college.” Ernst said she wants “to have further conversations” with Rao on these topics.
"Looking back at some of those writings and re-reading them, I cringe at some of the language I used," she told Sen. Lindsey Graham, R-S.C., chairman of the committee.
In addition to Rao's college writings, Democrats had concerns with her current role as 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.
The D.C. Circuit has jurisdiction of federal agencies and plays a major role in interpreting the role of agencies.
Democrats asked her if she would recuse herself on issues where she played a role in rolling back or rewriting regulations under the Trump administration, including: the clean power plant rule; the pending Title IX sexual assault regulations which would narrow the definition of sexual assault, place the burden on the victim to prove the assault in order for a school to respond and also raise the bar of proof; and the Housing and Urban Development disparate impact rule on race discrimination in housing, which is currently in litigation.
In each of the instances, Rao would not commit to recusing herself, saying she would “look carefully at the statutory standards of recusal” and “follow the practices of the D.C. Circuit.”
When asked by reporters if she was qualified to sit on the bench, Graham offered a quick, “Yeah.”
Rao was asked about a litany of other issues, including her past opposition to affirmative action and climate change.
She said she now believed that human activity “does contribute” to climate change.
When Sen. Cory Booker, D-N.J., asked Rao if she thought gay marriage was “sinful,” Rao refused to comment. “These personal views are ones I would put to the side," she said.
Sen. Mazie Hirono, D-Hawaii, asked Rao about her position on "dwarf-tossing" — a bar game of tossing a little person to sticky walls. Rao wrote about that in 2011 as part of a series of essays on "dignity" in which she defended one participant who opposed a ban on the game because it deprived him of work. Rao told the committee that she didn’t take a specific position on the practice but was commenting on a specific case.
If all Republicans back Rao, Democrats, with 47 members, might not be able to defeat her confirmation, but they could do enough damage to prevent her from ever being nominated to the Supreme Court.
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 concerning.