It turns out that Sen. Josh Hawley (R-MO) has some questions about Neomi Rao.
Rao is the current Administrator of the Office of Information and Regulatory Affairs — making her the Trump Administration’s de facto “regulatory czar” — who is the White House’s official nominee tapped to fill Justice Brett Kavanaugh’s vacated seat on the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit, due to its administrative law-heavy docket and its position in the nation’s capital, is often considered to be the second most prestigious court in the country after the U.S. Supreme Court. In addition to Kavanaugh, Chief Justice John Roberts, Justice Clarence Thomas, and the late Justice Antonin Scalia were all tapped to the Supreme Court from their respective perches on the D.C. Circuit.
Hawley — himself a Yale Law School graduate, former Supreme Court clerk, constitutional law professor, and Missouri Attorney General — now has some questions about Neomi Rao’s judicial philosophy. His questions mainly pertain to Rao’s views on abortion policy, abortion jurisprudence, and the faux, atextual constitutional doctrine of “substantive due process.”
And apparently Hawley is not the only Republican senator to have such concerns about Rao.
Reliable sources tell me that Hawley’s fellow Rao skeptic is Sen. Tom Cotton (R-AR) — himself no legal slouch, either, as a Harvard Law School graduate and former clerk on the U.S. Court of Appeals for the Fifth Circuit.
Rao’s Senate Judiciary Committee confirmation vote is scheduled for later this week, and the Judicial Crisis Network (JCN) — a conservative legal group founded during the George W. Bush Administration, and which has close ties to certain Federalist Society legal eagle elites — has decided that Hawley’s merely raising questions about Rao’s commitment to exegetically sound conservative jurisprudence is a step too far. Heaven forbid that an incontrovertibly conservative U.S. Senator stand up strongly for unborn children! It’s not like conservatives haven’t been repeatedly burned on judicial nominations before!
Specifically, JCN has petulantly responded by bringing a bazooka gun to a knife fight.
Indeed, today Politico has a report describing the extent to which JCN is gunning to get Rao across the Senate Judiciary Committee finish line:
The Judicial Crisis Network will launch a $500,000 ad buy across television, radio and digital platforms in Missouri next week to pressure freshman Republican Sen. Josh Hawley into supporting Rao, a former prosecutor President Donald Trump tapped last November to fill the seat on the powerful D.C. Circuit that Brett Kavanaugh vacated when he joined the Supreme Court. A person familiar with the effort said Hawley, who’s said publicly that he has reservations about Rao’s judicial philosophy, needs to feel the heat in his own backyard.
“We are engaging in an all-hands-on-deck, coalition-wide effort to demonstrate to Senator Hawley that support for conservative judicial nominees is not negotiable,” this person said.
In addition to JCN, Politico reports that the Koch brothers-backed group Americans for Prosperity is planning an “aggressive” pro-Rao push. All of this because a conservative Republican Senator has the bald-faced temerity to ask questions about a Republican judicial nominee…from the Right.
Where to begin? Here are five thoughts on this internecine kerfuffle.
1. Conservatives Should Support Conservatism — Not The Trump Administration. It should go without saying that, in instances where substantive conservatism and the whims of the Trump Administration seem to differ, conservatives ought to stand for conservatism. If the White House Counsel’s Office, buttressed by outside advisers, were to hypothetically let slip through a nominee who held stealth views about abortion jurisprudence or “substantive due process” that are out of step with sound constitutional/originalist principles, then it ought to fall on conservatives on the U.S. Senate Judiciary Committee to serve as a failsafe. More generally, Hawley’s acting as a second set of corroborative eyes is simply emblematic of the rudimentary separation of powers tug-of-war that James Madison described in The Federalist No. 51: “Ambition must be made to counteract ambition.” Conservative U.S. Senators on the Judiciary Committee ought to have no blind fealty to the White House’s well-oiled judicial nominations machine simply because that White House is headed by a Republican; their fealty, instead, is to the original public meaning of the U.S. Constitution.
2. Josh Hawley Is Not A Run-Of-The-Mill Senator — His Opinions On This Carry Weight. Hawley, as aforementioned, is not your run-of-the-mill country bumpkin senator. He is a graduate of Yale Law School, where he led Yale’s chapter of the Federalist Society. He clerked for the highly reputable Judge Michael McConnell of the U.S. Court of Appeals for the Tenth Circuit before clerking for Chief Justice Roberts on the Supreme Court. He was a top appellate litigator in D.C., specializing in religious liberty litigation, before returning to Missouri to teach constitutional law and serve as Missouri’s Attorney General. He was, without much question, the Republican Party’s most highly prized U.S. Senate recruit last cycle. Hawley is brilliant and his commitment to life, religious liberty, and similar culture war issues cannot be doubted. As a Supreme Court clerk with a long pedigree within Federalist Society and religious liberty legal circles, Hawley should be viewed by JCN as something closely akin to family. It is inappropriate — and, indeed, unhinged — for JCN to air in public what amounts to an intra-family food fight against one of its own kin.
3. JCN’s Reaction Is Ridiculous And Smacks Of A Petty Turf War. Notwithstanding early warning signs about Justice Kavanaugh, the Trump Administration’s judicial nominations machine has generally been exemplary. Don McGahn did outstanding work as White House Counsel for his nearly two years in that role. (I have some more questions about current White House Counsel Pat Cipollone.) Indeed, much of the White House’s coordination with outside groups on judicial nominations has been with the Federalist Society and with JCN. It is difficult to view JCN’s hyperbolic, over-the-top reaction to Hawley’s merely raising questions about Rao’s record and constitutional exegesis as motivated by anything other than petty turf war concerns. JCN, in all likelihood, is scared of losing its place at the White House Counsel’s Office trough. But by subordinating a commitment to ensuring conservative judicial nominations are indeed conservative judicial nominations to narrowly defined organizational self-interest, JCN risks betraying its very own overarching mission and higher purpose. Furthermore, it simply cannot be emphasized enough how wildly hyperbolic JCN’s assault on Hawley is. Hawley is literally just asking questions! Why can’t JCN work with the White House Counsel’s Office — and with Rao — to help answer those questions, instead of launching a $500,000 fusillade against an indisputably conservative U.S. senator who merely wants to stand up for the inherent human dignity of unborn children?
4. There Is Reason To Clarify Rao’s Views. I have surveyed some of Rao’s legal scholarship. It is not clear to me, based on an objective reading of her writings, what exactly her doctrinal views are on abortion policy, on the Supreme Court’s abortion jurisprudence, or on “substantive due process” more generally. But there are some question marks that ought to be addressed. She has referred to the pro-life movement as the “anti-abortion” movement, which would, at minimum, be an unusual bit of rhetoric for someone who considers himself/herself pro-life. In an NPR interview back in 2015, she said she was “absolutely pleased” with the policy outcome of Obergefell v. Hodges, the constitutional atrocity that found same-sex nuptials as an alleged Fourteenth Amendment “right.” (In fairness to Rao, she said she thought Justice Anthony Kennedy’s majority opinion in Obergefell had “some serious problems.”) She has also written about how “extra-legal sources” can sometimes help a judge determine when a departure from precedent might be necessary:
Perhaps, however, extra-legal sources can help judges to determine when a departure from past practice might be necessary — philosophy might be a vehicle for legal change. But legal reasoning includes its own processes for change, and reliance on the past does not bind judges to outmoded principles when social and political understandings have evolved.
At minimum, Hawley is hardly out of line to be asking questions — especially because he claims to have heard from reliable sources (as have I, incidentally) that Rao may be personally “pro-choice,” as a policy matter. And it is not unreasonable to view someone who is personally “pro-choice” as being less inclined to overturn Roe, as a jurisprudential matter. Which leads us to …
5. Rao Is A Possible SCOTUS Nominee, So Airing This Fight Now Matters. Ramesh Ponnuru, over at National Review, gets this point completely right:
Some supporters of Rao’s confirmation are making an error in claiming that her views on abortion and Roe are irrelevant, since she is being nominated for the D.C. Circuit rather than the Supreme Court. Abortion-related cases have come before the circuit. Also, the circuit is considered a good launching pad for the Supreme Court. If a Republican nominee who favored keeping Roe made it to the D.C. Circuit, pro-lifers would have two more chances to block her from getting on the Court: when a Republican White House was considering nominating her for a vacancy there, and when she had been nominated. The White House consideration process has shown itself in the past to be insular, hard to influence, and (at least in previous administrations) prone to catastrophic mistakes. In the confirmation process following a nomination, Republicans would be under strong partisan pressure to approve a nominee.
This fight needs to be aired out now. In the event there is another Supreme Court vacancy in the Trump presidency, there would be immense pressure from certain circles to nominate a woman. The frontrunner, no doubt, would be Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit. But make no mistake about it: Neomi Rao, if a D.C. Circuit Court of Appeals judge at the time, would be a very, very serious contender for that Supreme Court seat. It is far, far better for conservatives to air out their laundry now, instead of doing so at the time of a possible Rao nomination to the Supreme Court. And that is but one more reason that conservatives should be thankful for Hawley’s efforts.