Neomi Rao, a former law professor and law clerk to Justice Clarence Thomas that President Trump wants to put on the second most powerful court in the country, said on Tuesday that she regrets writing that, when a woman says that she does not want to have sex, she might not actually mean it.
In what may be the most on-brand decision ever made by a Republican Party official, Trump nominated Rao to fill the appeals court seat previously held by Judge Brett Kavanaugh.
Rao distanced herself from her previous statements about rape during a confirmation hearing before the Senate Judiciary Committee on Tuesday. There is little doubt that the Republican-controlled Senate will ultimately confirm Rao to sit on the United States Court of Appeals for the District of Columbia Circuit — Republican senators largely focused their questions on praising Rao and dismissing her critics during Tuesday’s hearing.
Democrats, meanwhile, mostly alternated between questioning Rao about the often bizarre views she expressed while writing in student newspapers and magazines as a Yale undergraduate, and the more polished but still severely conservative views she expressed later, as a lawyer, law professor, and government official.
The issue of rape came up due to a pair of pieces Rao wrote as an undergrad. In an article published in the Yale Free Press, a conservative student publication, Rao criticized people she labeled as “nurture feminists” for wanting “to control their education and then choose their career” without also learning “to understand and accept responsibility for their sexuality.”
The concept of “date rape,” Rao wrote, “exemplifies the attempts of the nurture feminists to develop an artificial, alternative world in which women are free from sexual danger and ‘no always means no.'”
In a subsequent column, published in the Yale Herald, Rao wrote that rape victims who were drinking before their rape bear some of the responsibility for their assault. “Unless someone made her drinks undetectably strong or forced them down her throat,” Rao claimed, “a woman, like a man. decides when and how much to drink. And if she drinks the point where she can no longer choose, well, getting to that point was part of her choice.”
Now, in fairness, Rao wrote these words as an undergraduate. And in an exchange with Sen. Kamala Harris (D-CA), the onetime columnist said she no longer believes that no sometimes does not mean no. “No means no,” the judge-in-waiting told Harris, adding that “I regret writing that when I was in college.”
Yet, while Rao may no longer believe that rape victims who drink bear some of the responsibility for their assault, her professional writings suggest that she is still largely the same person who criticized “nurture feminists” in college. Her professional statements suggest that she embraces maximally conservative positions on many issues, and that she is often eager to find any possible justification for those views.
Many of these writings don’t merely reveal Rao to be a staunch conservative. Rather, they expose a thinker who paints with an unusually broad brush. Her scholarship is often devoid of nuance, and fails to wrestle with the need to cabin her views within a limiting principle. If she brings a similar approach to the federal bench, she is likely to demand sweeping legal changes without fully understanding the implications of what she’s about to do.
Owning the libs
The most bizarre claim in Rao’s scholarship can be found in a 2011 article where Rao criticized a French court’s decision upholding a ban on “dwarf tossing.” In that case, a little person named Manuel Wackenheim challenged the ban, claiming that he wished to be paid to have people throw him.
According to Rao, “the Wackenheim case demonstrates how concepts of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity.” Instead of giving Wackhenheim what Rao described as “the freedom to behave in an undignified manner,” the court “determined that it would be in the best interest of his dignity to prevent him from earning his living in this way.”
Wackenheim is, to say the least, an unusual case. But the reasoning Rao deploys here will be quite familiar to scholar of constitutional law. In its anti-canonical decision in Lochner v. New York, the Supreme Court struck down a law prohibiting bakeries from requiring its workers — workers who were typically paid by the day or the week and not by the hour — from working more than 60 hours a week.
In an Orwellian twist, the Supreme Court in Lochner characterized its decision as pro-worker. “There is no reasonable ground for interfering with the liberty of person or the right of free contract,” Justice Rufus Peckham wrote, “by determining the hours of labor in the occupation of a baker.” Workers, Peckham claimed, have a right to be overworked.
Though Lochner was overruled eight decades ago and is now taught in law schools as a disastrous decision, Rao’s invocation of a so-called right to earn a living by being tossed around closely resembles the rhetoric of modern day defenders of Lochner. Indeed, many litigators who are actively fighting to revive Lochner say that their goal is to bring back a “right to earn a living.” Rao’s statement regarding “dwarf tossing” doesn’t simply suggest that she is sympathetic to this effort, it expresses that view in what may be the most offensive way imaginable.
Similarly, in a 2013 essay on United States v. Windsor, one of the Supreme Court’s landmark marriage equality decisions, Rao asked “what about the groups sincerely seeking recognition exclusively for traditional marriage?” Windsor, she suggested, is flawed because it picked “one groups’ claim over another.”
Windsor, to be sure, may fairly be critiqued for not following the doctrinal framework the Supreme Court typically applies to minority groups that have historical been subject to irrational discrimination. But Rao’s objection to Windsor is incoherent. Courts routinely choose the claims of racial minorities over those of the Ku Klux Klan. Or the claims of women over the claims of religious conservatives who demand adherence to traditional gender roles. It’s hardly novel for a court to say that the law should show greater sympathy to an oppressed minority group vis-à-vis the demands of that group’s oppressors.
Rao’s magnum opus, such as it is, is a 2015 article seeking to revive a defunct doctrine known as “non-delegation.” Broadly speaking, the non-delegation doctrine prevents federal agencies from promulgating regulations fleshing out the details of federal policies. Among other things, the non-delegation doctrine offers a backdoor way that conservative judges could use to geld progressive government bodies such as the Environmental Protection Agency.
The thrust of Rao’s argument is that Congress is supposed to act as a “collective” body, not as a group of individuals who each wield power on their own. But if agencies can promulgate regulations that have the force of law, Rao argues, individual lawmakers can use the threat of oversight hearings, reduced appropriations, blocked confirmations and similar levers of power to pressure an agency to take regulatory action.
It’s an interesting argument, but it lacks any reasonable limiting principle. If agency regulation is wrong because it might be influenced by individual members of Congress, for example, then why should the judiciary be allowed to wield power? Individual members of Congress sometimes file amicus briefs, and they can also threaten courts with diminished funding, jurisdiction stripping, and even court-packing.
Simply put, it’s just not possible to design a system of government where prominent individuals won’t sometimes try to influence how government operates. But if Rao seriously thought that diminishing such influence is a worthwhile project, it’s very odd that her primary concern is that people who were elected to govern might try to influence policymaking.
No one elected corporate lobbyists. Or industry lawyers who routinely pressure government agencies to promulgate regulations that favor their industry. Or corporate litigants that file lawsuits seeking to shape the law in their favor. Or billionaires who write massive checks to a candidates’ super PAC in order to influence who gets to govern.
If Rao really cared about the problem of powerful individuals wielding power that exceeds their constitutional mandate, she might want to start with these, more egregious examples.
The picture that emerges of Neomi Rao, in other words, is someone who began her adulthood by making needlessly provocative claims to own the libs — and who subsequently spent her professional career making needlessly provocative claims to own the libs.
And now Donald Trump wants to place her in a job where the words she writes will literally become the law.