NEOMI RAO AFJ NOMINEE REPORT AFJ U.S. Court of Appeals for the District of Columbia Circuit WWW.AFJ.ORG CONTENTS Introduction, 1 Biography, 2 SEXUAL ASSAULT AND WOMEN’S RIGHTs, 4 RACIAL JUSTICE, 7 LGBTQ RIGHTS, 9 Disability RIGHTS, 11 Health Care, 12 PUBLIC PROTECTIONS, 13 CLIMATE, 15 LABOR, 16 EXECUTIVE POWER, 17 Criminal Justice, 19 Conclusion, 19 WWW.AFJ.ORG PAGE 1 her twenties would have stood out for opinions and writings that were brutal, INTRODUCTION even tinged with cruelty. A raft of these writings came to light in January 2019, On November 14, 2018, President shortly after her nomination, and the Trump nominated Neomi J. Rao to the revelation was a bombshell. D.C. Circuit Court of Appeals seat previously held by Judge Brett M. Rao wrote op-eds and articles that Kavanaugh. The nomination lobbed attacks at LGBTQ advocacy, immediately sparked intense racial justice, and climate. She wrote controversy, for reasons related both to insultingly about the speech and Rao’s own record and the unique mannerisms of leading African- circumstances surrounding her American scholars. She saved some of nomination and this moment in her harshest judgment for survivors of history. sexual assault, blaming survivors for being attacked. Two decades into her career, Neomi Rao is deeply embedded in an The writings are appalling, and Rao’s ultraconservative political milieu. Her supporters hastened to dismiss them generation of hard-right partisans as irrelevant because she was younger comprises the veterans of the 1990s when she penned them. But it is culture wars. But Rao, despite her ties impossible to dismiss the evidence that to traditional pillars of the right wing Rao, in mid-career, is determinedly such as the Koch brothers, Leonard translating her extreme views into Leo, and the Federalist Society, is no policy affecting millions of Americans. mere establishment Republican. What makes her nomination even more unconscionable is the fact that Rao currently serves as Administrator she has been named to fill of the Office of Information and Kavanaugh’s former seat. Regulatory Affairs (OIRA), and on her watch OIRA has begun laying waste to For weeks in 2018, the nation was a vast range of legal protections for convulsed over sexual abuse vulnerable people. The targets include allegations leveled against Kavanaugh Title IX protections for sexual assault by Dr. Christine Blasey Ford and others survivors, prohibitions on racial during his nomination to the Supreme discrimination in housing, protections Court. The nomination of Rao was a ensuring that doctors cannot refuse to severe blow to women’s rights treat LGBTQ patients, and more. Under advocates who did not hesitate to call Rao, OIRA has adopted a slash-and- Rao out as a rape apologist. Clearly, the burn extremism that reflects harsh White House either did not know or did indifference to human consequences. not care how deeply this nomination would undermine the faith of women – What is so significant about this and many men – in our justice system. transformation of OIRA is that its roots can clearly be traced to long-held It also comes at a time of heightened attitudes of its chief. Even among sensitivity about the racial justice similarly strident young conservatives – records of judicial nominees. The such as her contemporary, former judicial nomination of Ryan Bounds judicial nominee Ryan Bounds – Rao in was withdrawn after Senators Tim WWW.AFJ.ORG PAGE 2 Scott and Marco Rubio reportedly Our research finds that throughout her made clear they “would oppose him career, Rao has shown exceptional over racially-charged writings” in his hostility to the rights of women, LGBTQ record. Like Rao, Bounds had a record Americans, workers, consumers, people replete with offensive writings about of color, people with disabilities, and people of color, rape survivors, LGBTQ the environment, while aligning herself Americans and others. In an effort to with the interests of the wealthy and rescue his nomination, Bounds powerful. AFJ strongly opposes her attempted to apologize for his earlier confirmation. views. As of this writing, Rao has not – and there is intense pressure for senators who rejected Bounds to reject Rao’s nomination on similar grounds. BIOGRAPHY At the same time, Rao’s intense anti- Since her confirmation in July 2017 as regulatory zeal has arrayed powerful Administrator of the Office of pro-business interests on her side. The Management and Budget’s Office of Wall Street Journal editorialized Information and Regulatory Affairs (OIRA), aggressively in her favor. The Rao has overseen and championed corporate-friendly Trump President Trump’s agenda of stripping Administration has openly admitted to away public protections and safety searching for judicial nominees who standards. are hostile toward government agencies and their powers. Former Before joining the Trump Administration, White House Counsel Don McGahn Rao worked as a law professor at George unabashedly laid out a “coherent plan” Mason Law School. There, she took a to install judges who will gut federal leading role in advocating to change the laws, roll back civil rights, dismantle name of the law school in honor of Justice climate protections, and gut worker Antonin Scalia, following a multi-million rights. “These efforts to reform the dollar donation from the Charles Koch regulatory state begin with Congress Foundation. The Kochs donated $10 and the executive branch,” McGahn million to support the school’s renaming, said, “but they ultimately depend on fueling a student-led lawsuit over courts.” Rao embodies this spirit. concerns about the law school’s academic independence. The suit sought Rao also shares with many other disclosure of any agreements the school Trump judicial nominees an expansive may have made with the Koch brothers in view of presidential power and exchange for the funds. authority. At a time when President Trump may be facing legal jeopardy, it Rao was also the director and founder of is no coincidence that his White House the Center for the Study of the has shown a pattern of nominating Administrative State,1 founded in 2015 at judges with a strong likelihood of what is now Antonin Scalia Law School. finding legal justification for abuses of The Koch Foundation’s 2016 grant executive power. agreement binds the law school to provide funding to the center for at least This report addresses Rao’s legal ten years, prioritizing its influence.2 philosophy and her record regarding Consistent with the agenda of its wealthy critical legal rights and protections. and powerful benefactors, the Center WWW.AFJ.ORG PAGE 3 fights against protections for the Rao’s antipathy to Democrats emerged environment, consumers, and workers. early; she once criticized a liberal group on Yale’s campus as “representative of the While working at the law school, Rao, modern elitist class of Democrat bent on along with the law school dean, also met paternalistic social engineering” with Leonard Leo, the influential [emphasis added]. In an article arguing executive at the Federalist Society who against the movement for women’s has played a key role in Trump’s judicial equality, she wrote, “Women can be appointments.3 Rao and Leo’s personal reduced neither to the Hillary Clinton relationship is evinced by emails bitch-model nor to the primeval earth uncovered by UnKoch My Campus mother wielding mystical powers over through a Freedom of Information Act men” [emphasis added]. request.4 Prior to her career as a law professor, Rao Rao’s affinity for Leo’s Federalist Society served from 2005 to 2006 in the George began long before it became the main W. Bush Administration as Special outside group to which Trump has Assistant to the President and Associate delegated important aspects of the Counsel in the White House Counsel’s judicial nomination process. She joined at Office.7 From 2002 to 2005, Rao was in age 23 and has been a member since private practice at Clifford Chance LLP in then. Rao is a frequent speaker at London.8 She worked as Counsel for Federalist Society events, listing at least Nominations and Constitutional Law for 32 Federalist Society speeches in her the U.S. Senate Judiciary Committee from Senate Judiciary Questionnaire. Rao also 2001 to 2002.9 Rao also interned for the gave a 2016 speech, “Executive Agency Institute for Justice,10 which was initiated Overreach and Civil Justice,” at the with seed money from the Koch brothers. Lawyers for Civil Justice National The Institute for Justice’s purported Conference. This organization advocates mission is to “litigate[] to limit the size and to limit Americans’ access to the courts. In scope of government power.” After 2018, she received the Heritage college, Rao wrote for the Weekly Foundation Distinguished Alumni Award. Standard, a conservative publication.11 Rao’s public appearances and early Rao also clerked for Supreme Court writings strongly suggest she would be Justice Clarence Thomas and for Fourth an ideological, partisan jurist if confirmed Circuit Court of Appeals Judge J. Harvie to the D.C. Circuit. She has consistently Wilkinson, III. Rao received her J.D. from opposed judges appointed by the University of Chicago Law School in Democratic presidents. Rao testified in 1999 and a B.A. from Yale University. opposition to Supreme Court nominee Sonia Sotomayor, criticizing Sotomayor’s “personal, consequentialist approach to judging.”5 Rao also wrote skeptically about Elena Kagan’s nomination to the Supreme Court, arguing that “Ms. Kagan and those preparing her face a simple, political problem: ‘progressive’ views of judging are difficult to defend.”6 WWW.AFJ.ORG PAGE 4 be responsible for my actions.” While Rao conceded that someone “who SEXUAL ASSAULT rapes a drunk girl should be prosecuted,” she continued to blame survivors by arguing, “[a]t the same AND WOMEN’S time, a good way to avoid a potential date rape is to stay reasonably sober” [emphasis added].