Neomi Rao Confirmed To Nation’s Second Most Powerful Court

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Kevin Daley Supreme Court correspondent
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The Senate confirmed Neomi Rao to succeed Justice Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit early Wednesday afternoon.

The 53-46 vote followed party lines. Rao overcame Democrats who opposed her nomination in view of opinion pieces she wrote for a college newspaper as an undergraduate at Yale and social conservatives who expressed misgivings about her views on social issues.

“Neomi Rao’s experience and intellect make her uniquely qualified to fill Justice Kavanaugh’s shoes on the D.C. Circuit,” Carrie Severino, chief counsel of the Judicial Crisis Network, said in a statement. “Rao will fairly apply the law and honor the Constitution; she’ll be a phenomenal judge serving on one of our nation’s highest courts.”

The D.C. Circuit is often styled the second most powerful court in the nation because its docket encompasses high-profile regulatory and separation of powers disputes. The court is also something of a farm team for the Supreme Court: Chief Justice John Roberts and Justices Clarence Thomas, Ruth Bader Ginsburg and Kavanaugh served on the D.C. Circuit prior to their elevation.

Rao is the eighth Thomas clerk confirmed to the federal bench since President Donald Trump took office.

As a professor at George Mason University’s Antonin Scalia Law School, Rao founded the Center for the Study of the Administrative and developed a reputation as a leading authority on regulatory issues. She served as the Trump administration’s deregulatory tzar prior to her nomination.

Despite strong support from the conservative legal establishment, Rao’s confirmation was periodically in doubt. Democrats on the Senate Judiciary Committee grilled her over college-era opinion pieces in which she suggested women who drink heavily bear culpability for date rape. Others questioned the wisdom of affirmative action programs.

The Democratic attacks appeared to gain currency after GOP Sen. Joni Ernst of Iowa called Rao’s undergraduate writings “troubling.” Ernst recently revealed that she was raped as a college student.

In turn, Rao submitted a letter to the committee largely denouncing her collegiate editorials. (RELATED: Masterpiece Cakeshop And Colorado Call Truce In Harassment, Discrimination Dispute)

“As a college student, I was sheltered,” she wrote. “Many years later, I have experienced more of the ups and downs of life.”

Rao also beat back skepticism from social conservatives. Her academic writings touching a legal theory called substantive due process — coupled with unverified rumors about her personal views — led some to speculate that she would not confine abortion or LGBT rights. GOP Sen. Josh Hawley of Missouri was the right’s leading Rao-skeptic.

Sen. Josh Hawley (R-MO) speaks during a hearing before the Senate Judiciary Committee on March 12, 2019. (Alex Wong/Getty Images)

Sen. Josh Hawley speaks during a hearing before the Senate Judiciary Committee on March 12, 2019. (Alex Wong/Getty Images)

The ensuing debate exposed a growing divide in the conservative legal movement between libertarians and religious conservatives, who feel increasingly marginalized where judicial confirmations are concerned. Skeptical Republican lawmakers spoke privately with Thomas about Rao, while The Wall Street Journal and conservative advocacy groups publicly blasted Hawley and his allies.

Other Republican lawmakers, like GOP Sen. Ted Cruz of Texas, were indignant at the effort to bring Hawley to heel. Cruz went so far as to say he would oppose Rao’s elevation to the Supreme Court were she ever a nominee, while cautioning that she is well-suited for the D.C. Circuit.

Ernst and Hawley both voted for Rao’s confirmation Wednesday.

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