OPINION: Senate Democrats Struggle To Impede Neomi Rao’s Nomination To DC Circuit

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Michael Thielen Executive Director, Republican National Lawyers Association
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The Senate Judiciary Committee this week is holding hearings on Neomi Rao’s nomination to be a judge on the prestigious D.C. Circuit Court of Appeals. Senate Judiciary Committee Democrats failed to lay a glove on Rao, who is a law professor at George Mason University and administrator of the Office of Information and Regulatory affairs. She was calm, lawyerly, and demonstrated a vast knowledge of both legal substance and theory.

Democrats did land some blows — but only on themselves.

First, hapless Sen. Cory “Spartacus” Booker whose line of questioning was so bad and ham-handed on religion that Sen. Ted Cruz who followed him had to lecture him on what the Judiciary Committee can and cannot do. Cruz said: “We’ve seen a growing pattern among Democrats of hostility to religious faith…This committee is not a theological court of inquisition.” Booker asked for time back to clarify and agreed with Cruz that questioning a nominee on their religion was not appropriate.

But that was not Booker’s only mistake. He also made the gaffe of asking, “Have you ever had any LGBTQ law clerks?” To which Rao replied: “Senator, I’ve yet to be a judge. I don’t have law clerks.” In addition to being potentially illegal in an employment context, the question itself is troubling. Asking a person their sexual orientation in a job interview opens the door to potential discrimination.

While watching Booker question was kind of like watching a multi-car wreck develop and grow, at least he was not condescending. Sen. Dick Durbin was troubled by the fact that Neomi Rao and her Indian family arrived in the country with nothing besides $16 and a dream in part inspired by Dr. Martin Luther King, Jr. Durbin perhaps prefers those in his party who reject King and instead support anti-Semitic racial supremacist Louis Farrakhan. In all seriousness, how can Durbin be upset that a young woman of color found Dr. Martin Luther King inspiring?

Durbin was slightly better than Sen. Sheldon Whitehouse as at least Durbin cleared the low bar of asking a question. Whitehouse asked exactly zero questions of Rao. He instead went on a conspiracy-laden rant that talked of “dark money” and claimed that all conservative judges and judicial nominees only serve “special interests.”

The rant was so bad that when it was finished Judiciary Committee Chairman Lindsey Graham raised an eyebrow and said “okay,” drawing laughter from the audience. The irony of his rant is that the best example of “dark money” from “special interests” in the room was the presumably paid protesters wearing “Reject Rao” t-shirts funded by the Alliance for Justice, a group with just that sort of dark funding.

In defense of Senate Democrats, maybe they knew that Rao was much better versed in the law than they were and such histrionics were their best hope for landing on punch on Rao. Sen. Richard Blumenthal tried to create a gotcha moment by quoting some comments Rao made on “grandstanding” in the context of the Supreme Court’s decisions on the Gun-Free School Zones Act and Violence Against Women Act. The only problem was, as Sen. Josh Hawley pointed out, she was summarizing what the Supreme Court and an expert had said, not giving her opinion. Just as Cruz had done to Booker, Hawley made Blumenthal look foolish.

The larger point was Rao was doing what will be her job when she is confirmed to the DC Circuit: interpreting Supreme Court precedent and following the law. Sen. Patrick Leahy tried to say she was unqualified because she had not been a judge before and has limited trial experience. Of course, Leahy also said the American Bar Association’s rating was the “Gold Standard” for determining whether nominees should be confirmed and the ABA rated her well-qualified.

The last example of where the Democrats looked foolish is multiple Democrat senators attacked Rao for her provocative college writings on drinking and rape. Rao made clear that rape is a terrible crime and no one should blame a victim of rape. While her language in college was imperfect and would be better with age, Rao was really making the common sense observation that women could take actions to decrease their chances of being a victim, such as not drinking to the point of senselessness.

Were the Democrats really trying to say it is better for co-eds to drink to incapacity to see what happens to them? Forget co-eds, are there any parents who would be upset with the admonition to use common sense when drinking? Democrats seemed to be appalled that anyone would give the advice not to drink to excess and that a person should take steps to avoid being the victim of a crime.

But that is the point. If this were about common sense, Rao would be confirmed 100 to 0. As a person who founded a law school institute on administrative law, as the current leading government expert on regulation, there is no better nominee than Rao for the administrative and regulation-focused D.C. Circuit.

But as of now, Ted Cruz is right: for the Senate Judiciary Democrats, it is not a committee as much as a “theater for mischaracterizing or twisting nominees’ records or view.” This boxing match needs to end and respect for the rule of law needs to return.

Michael Thielen is executive director of the Republican National Lawyers Association.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.