Neomi Rao

The aftermath of Brett Kavanaugh’s controversial Supreme Court nomination hearings last year was evident in Neomi Rao’s hearing Tuesday. | M. Scott Mahaskey/POLITICO

Legal

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President Donald Trump’s pick to replace Brett Kavanaugh on the nation‘s second-highest court was grilled Tuesday by lawmakers for her writings on sexual assault.

At least one GOP senator, Joni Ernst of Iowa, said she is still undecided on whether she will support Neomi Rao’s nomination to the D.C. Circuit Court of Appeals.

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Rao, head of the White House Office of Information and Regulatory Affairs, which reviews executive branch regulations, came under fire from lawmakers during her Senate Judiciary Committee confirmation hearing. During the hearing, senators, including Ernst, questioned Rao about op-eds she wrote on sexual assault while she was an undergrad at Yale.

In an article on date rape, Rao wrote that if a woman “drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”

“I’m not going to mince words,” Ernst said at the hearing. “I’ve had a chance to review a number of your writings while you were in college and they do give me pause. And not just from my own personal experiences but regarding a message that we are sending young women everywhere.”

Ernst told Bloomberg News last month that she was raped in college. Ernst is one of two Republican women to ever serve on the Senate Judiciary Committee and is the only woman in Senate Republican leadership. She is up for reelection in 2020.

Ernst also expressed concern about a 1993 article Rao wrote, in which she said that social critic Camille Paglia “accurately describes the dangerous feminist idealism which teaches women that they are equal.” Ernst asked whether Rao believed it was a “dangerous feminist ideal” that women are created equal.

Rao said she regretted the statement and supports equal rights for men and women.

“I’m honestly not sure why I wrote that in college,” Rao added.

BuzzFeed first reported on Rao’s writings in January.

Rao told the judiciary panel members that she’d like to think she’s “matured as a thinker and a writer and indeed as a person” in the past two decades. She emphasized that victims of sexual assault should never bear the blame and said that her college writings attempted to make the “common sense” observation that women could take certain steps to make it less likely they would become targets of sexual assault.

Some senators, however, defended Rao, with some drawing parallels to Kavanaugh’s controversial Supreme Court nomination hearings last year.

Sen. John Cornyn (R-Texas) said it appears to be typical now that “people go back 25, 30 years and look at things like that and try to criticize people for maybe some of their youthful indiscretions or opinions they expressed back then.”

Sen. Mike Lee (R-Utah) noted “there are some things you can write in college that could disqualify a person from later subsequent service in political life,” but “it’s quite obviously not what we’re dealing with here.”

Rao also faced questions about whether she would recuse herself from legal challenges to the Trump administration. She said she would approach those lawsuits on a “case-by-case” basis.

“If I were to be confirmed, I would look carefully at the statutory standards for recusal,” Rao said. “I would consult with my colleagues and follow the precedents and practices on the D.C. Circuit.”

Senate Judiciary Committee ranking member Dianne Feinstein (D-Calif.), however, voiced skepticism over how Rao would handle such cases if confirmed to the D.C. Circuit Court of Appeals.

“The D.C. Circuit hears most challenges to federal regulations, thus if confirmed Ms. Rao could be in a position to decide cases about many of the very regulations that she has personally worked on,” Feinstein said.

Prior to her role at the Office of Information and Regulatory Affairs, Rao was a law professor and worked on the Senate Judiciary Committee. She also clerked for Supreme Court Justice Clarence Thomas and worked in the White House counsel’s office under President George W. Bush.

When asked about her lack of experience as a trial attorney or judge, Rao defended her qualifications for the D.C. Circuit Court of Appeals.

“I think the experience that I’ve had over the past 20 or so years fits very well with the specialized docket of the D.C. circuit, which as was mentioned hears a disproportionate number of cases about administrative law and challenges to agency action,” Rao said. “I have extensive practical experience with those issues.”

The hearing had some awkward moments. Sen. Cory Booker (D-N.J.), a 2020 presidential candidate, asked whether Rao had ever employed an LGBTQ law clerk. She responded she has not been a judge and doesn’t have law clerks, prompting backlash from conservative media outlets.

Ryan Saavedra, a reporter at the conservative website the Daily Wire, tweeted the exchange, writing, “Sen. Cory Booker (D-NJ) embarrasses himself while questioning D.C. Circuit Court of Appeals nominee Neomi Rao during her confirmation hearing.”

Booker clarified and asked Rao if she’d had anyone who identified as LGBTQ work for her.

“To be honest, I don’t know the sexual orientation of my staff,” Rao responded. “I treat people as individuals.”

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