Why Kavanaugh Replacement Neomi Rao Is So Controversial

Neomi Rao testifies during a Senate Judiciary confirmation hearing on February 5, 2019. Photo: Zach Gibson/Getty Images

Confirmations to the D.C. Circuit Court of Appeals don’t usually generate big headlines, even when they aren’t competing with a massive college admissions scandal and various presidential scandals. But Neomi Rao’s confirmation to the position vacated by Supreme Court Justice Brett Kavanaugh shouldn’t be overlooked. The Senate’s 53-46 vote on Wednesday gives Rao, who once clerked for Supreme Court Justice Clarence Thomas, one of the most consequential judicial assignments in the country. Since she’s only 45 years old, she’ll likely be on the court for a long time, which also sets her up well for a future nomination to the U.S. Supreme Court.

The archconservative Thomas lobbied for Rao’s confirmation, and as one might expect, her political views place her firmly on the far-right end of the political spectrum. Here’s a look at the decisions and opinions that made her such a controversial pick, even among Trump nominees.

Rao doesn’t seem enthusiastic about disability rights.

In a 2011 piece for the Volokh Conspiracy, Rao argued that French courts had erred when they upheld bans on the practice of dwarf-tossing. As the Washington Post reported in January, the bans had been challenged in 1991 by Manuel Wackenheim, a person with dwarfism who made a living from participating in dwarf-tossing shows. Rao defended Wackenheim, on the basis that Wackenheim had a right to be tossed if that’s what he wanted.

Wackenheim’s opinion is far from universal within his own community. Though there may be some safety precautions taken during shows, in 2011 Martin Henderson, a man with dwarfism, was paralyzed after he was picked up and thrown against his will. He died several years later due to complications from the attack. Little People of America has long called for it to be banned. “I’m a physical assault survivor and scared for my life,” one LPA member told a Washington State Senate committee during a hearing for a proposed ban. LPA also opposed Rao’s nomination to to the court.

There are other reasons to worry that Rao might not be a diligent defender of rights for people with disabilities. “In this age of affirmative action, women’s rights, special rights for the handicapped and welfare for the indigent and lazy, elitism is a forgotten and embarrassing concept,” she wrote in a 1995 review of William Henry’s In Defense of Elitism. Rao has not elaborated on what, specifically, she meant by “special rights for the handicapped.” The Americans with Disabilities Act had passed only five years prior to the publication of her piece, after people with disabilities crawled up the steps of the U.S. Capitol to protest a dearth of legal protections.

Rao isn’t a fan of affirmative action in general.

During her hearings, Rao tried to distance herself from her bombastic college writings. In 1995, while attending Yale, she wrote in the school paper that the institution, “has dedicated itself to a relatively firm meritocracy which drops its standards only for a few minorities, some legacies and a football player here or there. Otherwise a Yale student need have no privilege or status, only than [sic] a good mind. Women have undoubtedly benefited from such a standard because a meritocracy cuts across traditional lines of gender bias.” That wouldn’t be the last time Rao inveighed against the practice in print; for this reason, People for the American Way, a left-of-center advocacy group, opposed her nomination.

Rao suggested women should stay sober to avoid rape.

Rao’s affirmative action writings seem linked to her general views on gender politics. “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. And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice,” Rao wrote in another Yale-era piece, as initially reported by Mother Jones.

During her Senate confirmation hearing, Rao said her comments on drinking were a “common-sense idea” of “trying to avoid being the victim of any crime.” But she generally disavowed her college writings on women and sexual assault, including another essay that said telling women they’re equal to men is “dangerous feminist idealism.”

“I very much regret that statement,” Rao said. “I’ve always believed strongly in the equality of women and men and for equal rights and opportunities for women. I’m honestly not sure why I wrote that in college.”

Rao helped lead the Trump administration’s war on regulation.

Rao joins the court straight from the Trump White House, where she served as the president’s “deregulatory czar,” as administrator of the White House Office of Information and Regulatory Affairs. In a 2018 op-ed for the Post, Rao bragged that by “eliminating unnecessary and duplicative red tape,” the White House had achieved “the lowest unemployment rates in nearly 50 years and dramatic economic growth for our country.”

But the “incredible economic boom” Rao described doesn’t really exist. Unemployment rates are low, but real wages still remain relatively flat. Wealth, meanwhile, continues to concentrate within a few households, a trend facilitated by Trump’s recent tax cuts. The administration’s deregulatory agenda has largely increased burdens on workers. Officials have rolled back key workplace safety measures in mining, manufacturing, and meat-processing industries.

Consider that, along with the administration’s sustained assaults on environmental and educational regulations, and it seems clear that the next non-Trumpian administration will have to invest significant time and effort into rebuilding the regulatory state. If that project encounters legal challenges, Rao’s presence on the D.C. Circuit Court of Appeals could become an obstacle.

Why Kavanaugh Replacement Neomi Rao Is So Controversial