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SHOWDOWN: Sen. Josh Hawley Pushes Forward With Concerns About D.C. Circuit Nominee Neomi Rao

By  Josh Hammer

Today, freshman Sen. Josh Hawley (R-MO) decided to double down and push onward with his previously flagged skepticism of top Trump administration judicial nominee Neomi Rao.

As The Daily Wire noted yesterday:

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’s public skepticism of Rao, as The Daily Wire also noted, makes this a nasty internecine struggle on the legal Right. Hawley is himself a Yale Law School graduate, former Supreme Court clerk, constitutional law professor, and Missouri Attorney General — and he now finds himself at loggerheads with the conservative group, Judicial Crisis Network (JCN), and JCN’s de facto bosses at the Federalist Society.

Today, JCN has only doubled down in its opposition to Hawley’s pronounced skepticism of Rao.

But Hawley himself has also doubled down.

As Politico and The New York Times report, Hawley’s press office today released a letter that the freshman Missouri Senator has sent to Rao. The letter reads, in relevant part:

As a member of the Senate Committee on the Judiciary, it is my responsibility to scrutinize every appellate court nominee’s approach to constitutional interpretation. That includes asking nominees about their understanding of the Fourteenth Amendment and substantive due process—the atextual doctrine that Supreme Court justices have invoked to strike down, among other things, state laws limiting abortion, and to justify judicial activism. Understanding that lower court judges are bound by precedent, I will not vote to confirm nominees whom I believe will expand substantive due process precedents like Roe v. Wade and Casey v. Planned Parenthood of Southeast Pennsylvania.

Hawley’s letter then cites some specific substantive and rhetorical concerns from Rao’s previous public statements and writings, some of which The Daily Wire discussed yesterday.

“I’ve got to do what I think is right for the people of my state, no matter what,” Hawley said, according to The New York Times. Hawley and Rao are set to meet on Wednesday.

Tonight, The Washington Post is confirming that Sen. Tom Cotton (R-AR) similarly harbors concerns about Rao:

Sen. Tom Cotton (R-Ark.) is privately raising questions about Neomi Rao, President Trump’s nominee for the U.S. Court of Appeals for the D.C. Circuit, and how she would potentially rule on cases involving abortion, according to people familiar with the matter.

Though he hasn’t voiced them publicly, Cotton shares concerns outlined by Sen. Josh Hawley (R-Mo.) earlier this week about Rao’s judicial philosophy, which Hawley detailed in a letter to Rao earlier Tuesday. Cotton declined to comment Tuesday evening when asked about Rao.

The concerns from two Republican senators with substantial legal credentials — Hawley is a former Supreme Court clerk, while Cotton graduated from Harvard Law School — represent another stumbling block for Rao, who was nominated in November to replace now-Justice Brett M. Kavanaugh on the influential D.C. circuit court.

Rao’s fate before the U.S. Senate Judiciary Committee will be decided later this week. Astute observers will no doubt be paying close attention to how Committee members Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) — each of whom clerked on the U.S. Supreme Court and was a highly accomplished constitutional attorney prior to ascending to the U.S. Senate — ultimately vote on Rao. But vocal opposition from fellow Supreme Court clerk Hawley, if Hawley indeed decides to pursue his skepticism to its logical conclusion, could prove influential.

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