In a 53-46 vote by the U.S. Senate, Neomi Rao was confirmed to the D.C. Circuit on Wednesday (March 13), filling the seat previously held by Justice Brett Kavanaugh. Rao, who has been President Donald Trump’s regulatory czar since November 2017, will be the first Indian-American woman to sit on the second-most important court in the land. She takes her seat after a brief but intense confirmation battle in which liberals assailed her for controversial writings on campus rape and one Republican senator questioned whether she is sufficiently anti-abortion.
As a conservative nominee, Rao will not swing the court’s ideological balance, but that did not stop conservative Senator Josh Hawley (R-MO) from briefly throwing a wrench in her nomination by suggesting that she would not do enough to oppose abortion rights. Conservative groups pushed back against Hawley, and he ultimately voted in favor of her confirmation.
The vote was along party lines with Senator Patty Murray (D-WA) not voting.
Rao has spent the last year and a half leading the White House’s Office of Information and Regulatory Affairs. In that role, she oversaw the Trump administration’s effort to roll back numerous Obama-era regulations on the environment, health care, and other areas. During her confirmation hearing before the Senate Judiciary Committee, Rao declined to say whether she would recuse herself from cases involving regulations she worked on as an administration official.
Rao is Trump’s second nominee confirmed to the D.C. Circuit after Judge Katsas was confirmed in December 2017. She is the 36th Trump-appointed judge to be confirmed to a court of appeals. Some suspect her successful confirmation earns her a place on Trump’s shortlist of potential Supreme Court nominees.
With Rao filling the only vacancy, the D.C. Circuit now has a full slate with 11 full-time judges. Seven of those judges were appointed by Democratic presidents, while four were appointed by Republicans. (If the court’s six senior judges are included, the balance shifts to eight Democratic-appointed judges and nine Republican-appointed judges.) Rao also brings up the gender balance as the fifth woman on the court.
Rao, 45, has a long conservative pedigree and has written skeptically about so-called independent agencies and the expansion of the administrative state. She clerked for Justice Clarence Thomas, who in recent weeks has lobbied senators behind the scenes to confirm her.
Aside from her conservative legal views, she came under criticism from many Democrats for inflammatory commentary she wrote as an undergraduate at Yale University in the 1990s. In one op-ed piece, she seemed to blame victims of campus rape, writing, “If she drinks to the point where she can no longer choose, well, getting to that point was a part of her choice.” She also wrote that “a good way to avoid a potential date rape is to stay reasonably sober.” Rao apologized to the Judiciary Committee for those remarks.
The court will wind down oral arguments for its 2018-19 term in May, and it is possible that Rao could sit for her first D.C. Circuit argument before then. Katsas sat for oral argument 76 days after he was confirmed by the Senate, but that included a three-week break during the holidays. In keeping with that schedule, Rao has time to get settled before May.
