judicial appointments

Trump Aide, Thomas Protégé Confirmed for Top Circuit Court

Could Neomi Rao be destined for the Supreme Court? Photo: Zach Gibson/Getty Images

In a saga that reflected how focused Republicans are on eliminating reproductive rights, for all their protestations of objectivity on the subject, Neomi Rao was approved by the Senate Judiciary Committee on a party-line vote for a prized seat on the D.C. Court of Appeals, by far the most influential circuit court in the country. Rao’s confirmation briefly hung fire as Missouri senator Josh Hawley publicly questioned the firmness of her opposition to legalized abortion and Roe. v. Wade, mostly based on some academic writing that appeared friendly to the “substantive due process” doctrine that formed the basis for Roe. Hawley was attacked by other conservatives for meddling with Trump’s judicial nomination machine, which has by most accounts done well by the anti-abortion cause.

But what turned Hawley around, according to the Washington Post, was a reassurance about Rao from the Justice for whom she served as a law clerk: Clarence Thomas. Nobody, but nobody, doubts Thomas’s determination to overturn Roe, not gradually or partially, but root and branch, and probably immediately. He’s as certain a vote on that subject as any of the Court’s liberals are certain to fight to maintain abortion rights. So if he’s vouching for Rao on abortion, it’s meaningful.

In truth, if it hadn’t been for Hawley’s questions, there would have been a strong presumption that Rao was hostile to abortion rights, particularly (as Anna North notes) given her most recent job as Donald Trump’s chief regulatory officer:

Rao’s record has been sufficient for reproductive rights groups to oppose her. As the administrator of the Office of Information and Regulatory Affairs, she oversaw a Trump administration rule creating broad exceptions to the Obama-era contraceptive coverage mandate, as well as the proposed rule to bar providers that perform abortions from receiving federal family planning funds. According to a fact sheet from NARAL Pro-Choice America, her career with the administration “has been devastating to folks across the country who provide and need access to reproductive healthcare.”

Indeed, even those indifferent to abortion jurisprudence could not help but notice Rao’s outspoken support for presidential power, perhaps even exceeding those of former D.C. Circuit member Brett Kavanaugh. She’s also a former member of George W. Bush’s legal staff, and a member in good standing of the Federalist Society. The odds are high that she will do the will of the engineers of Trump’s judicial revolution, most definitely including a rollback in reproductive rights.

Rao did have to navigate another problem: After Judiciary Committee Democrats drew attention to some undergraduate writings of hers that appeared to blame date-rape victims for the crimes against them, Republican Joni Ernst, a rape victim herself, expressed some concerns about the proposed judge. Rao ate some crow and indicated her views had matured, and Ernst went along with her confirmation.

Assuming the full Senate confirms Rao, which is very likely, she may have an even more promising future. Though she’s only 45, her name has already come up as a potential Supreme Court nominee. If Clarence Thomas were to retire soon to give Trump a chance to place a younger conservative on the Court, Rao, as an Asian-American woman, might be a plausible successor to SCOTUS’s only African-American. Alternatively, if Trump gets a second term, she might be chosen as a successor to one of the Court’s liberals, and then join her mentor Justice Thomas in happily overturning decades of precedents — perhaps including Roe v. Wade.

Trump Aide, Thomas Protégé Confirmed for Top Circuit Court