Trump pick for key court faces scrutiny over past writing about rape

Posted at 2:11 PM, Feb 05, 2019
and last updated 2019-02-05 16:22:31-05

The judicial wars returned to Washington on Tuesday as the Senate Judiciary Committee met to consider Neomi Rao, President Donald Trump’s nominee for newest Supreme Court Justice Brett Kavanaugh’s now-vacant seat on a powerful appellate court in Washington.

Rao — who serves as Trump’s “czar” overseeing regulatory rollbacks — faced fierce questioning from Democrats not just for her work in the Trump administration but for commentary she wrote decades ago as a Yale University student suggesting women should change their behavior to avoid date rape.

“I cringe” at some of the language, Rao told the senators during her testimony on Tuesday. As most every Democratic senator on the dais mentioned her early writings, Rao stressed that they occurred nearly “two decades” ago at a “time of exploration” in college.

Sen. Jodi Ernst, R-Iowa, who recently publicly disclosed she had been a victim of sexual assault, said Rao’s columns gave her “pause.”

In one piece for the Yale Herald written in 1994 titled “Shades of Gray,” Rao responded to an alleged date rape incident on campus by writing: “It has always seemed self-evident to me that even if I drank a lot, I would still be responsible for my actions.”

She added: “A man who rapes a drunk girl should be prosecuted. At the same time, a good way to avoid a potential date rape is to stay reasonably sober.”

On Tuesday, Rao said that when she was writing about the incident she emphasized that rape is a crime and no one should “blame the victim” but that she had attempted to make a “common-sense observation” that there were some actions a woman could take so it would be less likely she would become a victim. Rao said she hoped she has “matured” as a writer and a person.

Democratic Sen. Patrick Leahy of Vermont seized on her comments and said that as a former prosecutor, he had dealt with rape cases. He said he feared her sentiments might lead some women to be too ashamed to report rape.

Rao responded that she had made it “very clear” that “rape is a terrible crime for which men should be held responsible.”

“I was trying to make in perhaps not the most elegant way the sort of common-sense observation that excessive drinking can lead to risky and dangerous behavior for both men and women. It’s the advice my mother gave me; it’s the advice that I give my children. And I certainly regret any implication of blaming the victim,” she said.

Other Republicans leaped to her defense, pointing out that the American Bar Association had given her a rating of “well qualified.” The Senate committee is majority Republican.

Sen. Ted Cruz, R-Texas, stressed that Rao’s main point had been that college students should refrain from excessive drinking and that represented “good advice.” He noted she had been unequivocal that those who commit crimes should be prosecuted.

Republican Sen. Mike Lee of Utah remarked that hearings had become “bloodsport” and that nothing in her early writings was “disqualifying.”

The top Democrat on the committee, Sen. Dianne Feinstein of California, as well as Democratic presidential candidate Cory Booker, D-New Jersey, focused on Rao’s work for the Trump administration and its goal to roll back agency regulations.

Rao, a former clerk to Justice Clarence Thomas, currently serves as the administrator of the Office of Information and Regulatory Affairs. It’s a little-known entity within the Office of the White House Office of Management and Budget charged with ensuring that federal agencies follow the law and act consistently with the administration’s policies.

Her critics say that during the Trump administration, Rao has worked to roll back Title IX protections for survivors of sexual assault on campus, as well as protections against racial discrimination in housing and environmental safeguards.

Booker expressed concerns, particularly in housing discrimination. Rao said the issue was still under consideration.

Feinstein pressed Rao, if confirmed, to recuse herself from cases regarding regulations that she had reviewed.

Rao said she would review each issue on a case-by-case basis if confirmed.

“I will not say yes,” she said. “I will not say no.”

Eyed as potential Supreme Court justice

Democrats fear that Rao, 45, a conservative woman already attracting mention as a potential Supreme Court nominee, would have a glide path to the nation’s highest court if she is confirmed.

She is up for a seat on the US Court of Appeals for the DC Circuit, considered by many as the second most powerful court in the land because it reviews the actions of federal agencies. The court is a breeding ground for Supreme Court justices, including not just Kavanaugh but Chief Justice John Roberts as well as Thomas and Justice Ruth Bader Ginsburg.

“It’s no coincidence that the federal government office she heads is signing off on policies that harm some of our society’s most vulnerable,” said Nan Aron of the progressive Alliance for Justice.

But Case Western Reserve University School of Law professor Jonathan Adler, who supports Rao, pushed back on that characterization.

“The Office of Information and Regulatory Affairs is not developing individual policies,” he said, “but making sure agencies play by the rules and study the consequences of what they want to do.”

Rao is Indian-American, and the President unexpectedly announced her appointment during a Diwali celebration at the White House.

“We were going to announce that tomorrow,” Trump said in November. “And I said you know, here we are, Neomi — we’re never going to do better than this — I thought it was an appropriate place. “

Rao is a graduate of Yale University in 1995 and the University of Chicago Law School. Before her work in the Trump administration, she worked at the Antonin Scalia Law School at George Mason University as the founder of the Center for the Study of the Administrative State.

She was first interviewed for the position in August by then-White House Counsel Don McGahn. Last month, after Congress failed to act on her nomination, the White House renominated her along with dozens of other nominees.