As I have covered this week, freshman Sen. Josh Hawley (R-MO), a social conservative and decorated attorney, had raised some substantive questions pertaining to the White House’s nomination of Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. As I wrote on Monday:
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.”
Hawley met privately with Rao yesterday and, following their discussion, ultimately voted to advance her nomination to the Senate floor. The Senate Judiciary Committee’s final tally was 12-10, reflecting a party-line split.
Before confirming his vote for Rao, Hawley read a statement explaining his vote.
“In our discussion, Ms. Rao said she would interpret the Constitution according to its text, structure and history, not according to changing social and political understandings,” Hawley said. “She said the text of the Constitution is fixed and the meaning must follow that fixed text … She said she did not believe the concept of ‘dignity’ should be used to depart from the text and structure of the Constitution or to justify otherwise dubious legal doctrines Finally, she emphasized that substantive due process finds no textual support in the Constitution.”
Hawley had been on the receiving end of a full-frontal assault all week from certain conservative-leaning groups due to his merely having raised substantive questions pertaining to Rao’s judicial philosophy. The Judicial Crisis Network, which is closely affiliated with the Federalist Society, eviscerated Hawley in no uncertain terms. The Wall Street Journal editorial board — which last July opined that refusing to overturn Roe v. Wade would amount to “proper conservative respect for the law and the reputation of the [Supreme] Court” —issued multiple editorials this week attacking Hawley in both personal and substantive fashion. In its editorial published Monday night, the Journal found fault with Hawley’s “lean and hungry look.”
Multiple Republican senators defended Hawley in remarks made today during the Senate Judiciary Committee hearing, prior to the formal vote to advance Rao’s nomination to the Senate floor. Rachel Bovard of the Conservative Partnership Institute neatly tweeted some of the highlights.
Sen. Ted Cruz (R-TX), in his statement, was sure to note that his “assessment [of Rao’s nomination] might be very different were this a consideration for the U.S. Supreme Court and not for the D.C. Circuit.” However, as history has repeatedly proven and as Ramesh Ponnuru of National Review noted on Monday, the D.C. Circuit has been a frequent breeding ground for future Supreme Court nominations.
Sen. Joni Ernst (R-IA), for her part, also continued to note her idiosyncratic skepticism of some of Rao’s previous writings.
Here is a video highlight of the Republican senators coming to Hawley’s defense — at the expense of the Judicial Crisis Network and The Wall Street Journal editorial board.