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Trump’s DC Circuit Nominee — And Reported Supreme Court Contender — Wrote Inflammatory Op-Eds In College

Neomi Rao is nominated for Justice Brett Kavanaugh’s former seat on the DC Circuit.

Posted on January 14, 2019, at 1:03 p.m. ET

Abaca Press / Sipa USA via AP

Neomi Rao at a White House event on Nov. 13, 2018, when President Donald Trump announced her nomination to the US Court of Appeals for the DC Circuit.

WASHINGTON — Neomi Rao — President Donald Trump’s pick for a powerful federal judgeship and a reported US Supreme Court contender — wrote a string of op-eds in college and just after she graduated, at times using inflammatory language to discuss race, date rape, and LGBT rights.

In pieces reviewed by BuzzFeed News that Rao wrote between 1994 and 1996 — she graduated from Yale University in 1995 — she described race as a “hot, money-making issue,” affirmative action as the “anointed dragon of liberal excess,” welfare as being for “for the indigent and lazy,” and LGBT issues as part of “trendy” political movements. 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.”

Rao is nominated for Supreme Court Justice Brett Kavanaugh’s former seat on the US Court of Appeals for the DC Circuit. It's an influential court sometimes referred to as the second most important court both because of the cases it hears — it’s the main forum for big fights over government and executive power — and the fact that a number of alumni have landed on the US Supreme Court. Liberal advocacy groups denounced Rao’s nomination the moment Trump announced it in November, pointing to her conservative record. Politico reported last week that Rao had been added to the administration’s list of potential Supreme Court nominees.

Rao has never been a judge, and absent any record on the bench, her writings as a student and later as a prominent law professor, which she submitted to the Senate Judiciary Committee, are expected to feature prominently in the fight over her nomination.

Nan Aron, president of the liberal advocacy group Alliance for Justice, which first highlighted Rao’s college writings to BuzzFeed News, said Rao’s columns were “consistent with the administration’s support of candidates who make racially insensitive statements and comments hostile to sexual assault survivors.”

“She shouldn't be awarded a seat on what many view as the second highest court in the country, which is often a stepping stone to the Supreme Court,” Aron said.

Rao currently serves in the Trump administration as head of the Office of Information and Regulatory Affairs. Justice Department spokesperson Kerri Kupec said in a statement to BuzzFeed News that Rao's writings were “intentionally provocative.”

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“Neomi Rao is a renowned constitutional and administrative law expert. That is why the President nominated her to the D.C. Circuit. The views she expressed a quarter century ago as a college student writing for her student newspaper were intentionally provocative, designed to raise questions and push back against liberal elitism that dominated her campus at the time,” Kupec said. “More than two decades later, her views can be found in her numerous academic articles and speeches. We are confident Ms. Rao will make an exemplary judge on the D.C Circuit.”

“Touchy-feely talk of tolerance”

As an undergraduate student at Yale, Rao published a number of pieces in two campus publications, the Yale Free Press and Yale Herald, as well as in the Washington Times as a journalism fellow at the conservative Heritage Foundation. After college, she wrote for the Weekly Standard.

In a July 1994 piece for the Washington Times denouncing “multiculturalists” on campus Rao wrote that, “Underneath their touchy-feely talk of tolerance, they seek to undermine American culture.”

“They argue that culture, society and politics have been defined — and presumably defiled — by white, male heterosexuals hostile to their way of life. For example, homosexuals want to redefine marriage and parenthood; feminists in women's studies programs want to replace so-called male rationality with more sensitive responses common to womyn. It may be kinder and gentler, but can you build a bridge with it?” she wrote.

In the same piece, she used language that became a focus in the ultimately unsuccessful nomination of Ryan Bounds to a seat on the 9th Circuit. Like Bounds did in a piece he wrote as an undergraduate student at Stanford University in 1995, Rao cited a racial slur that she accused others of using.

“Those who reject their assigned categories are called names: So-called conforming blacks are called ‘oreos’ by members of their own community, conservatives become ‘fascists.’ Preaching tolerance, multiculturalists seldom practice it,” Rao wrote.

Bounds’ critics pointed to racially charged language he used in his college writings. Bounds responded by saying he was trying to criticize others who used derogatory language, but also told the Senate Judiciary Committee that he had used “overheated” and “overzealous” language. He was also accused of failing to disclose his college writings to a state nominating committee; he maintained that he had followed all instructions.

Republican Sen. Tim Scott, the only black Republican in the Senate, broke ranks in refusing to support Bounds; he also refused to support North Carolina judicial nominee Thomas Farr and wrote a piece in the Wall Street Journal last month saying Republicans “should stop bringing candidates with questionable track records on race before the full Senate for a vote.”

In a 1996 piece in the Weekly Standard critical of the recent work of two black scholars, Henry Louis Gates Jr. and Cornel West, Rao wrote that the two men “position themselves above the corporate hype. Race may be a hot, money-making issue, but even West seems to realize that it can be talked to death.”

In a November 1994 column for the Yale Herald about a rift between a campus LGBT organization and a new group formed by conservative gay students, Rao wrote that, “Trendy political movements have only recently added sexuality to the standard checklist of traits requiring tolerance.”

“If she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”

In an October 1994 column, also in the Yale Herald, Rao wrote that while a drunk man who raped women should be prosecuted, “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. “Implying that a drunk woman has no control of her actions, but that a drunk man does strips women of all moral responsibility.”

In a 1995 book review in the Yale Free Press about a book called “In Defense of Elitism,” Rao wrote that, “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.” Rao agreed with some of the author's sentiments in support of elitism, writing that many of the book's criticisms of egalitarianism “ring true.” Later in the piece, Rao praised the author’s arguments “against the shoddy standards of feminist scholarship, which attempts to fabricate a rich history of female work where none exists.”

Rao wrote critically about affirmative action, including in a November 1996 piece for the Weekly Standard in which she called it "the anointed dragon of liberal excess."

Rao was involved in conservative life at Yale beyond her writings, and was caught up in a controversy in 1993 as a member of the Party of the Right, a conservative student group. In February 1993, the Yale Daily News Magazine published an article that anonymously quoted women who were members of the Party of the Right discussing their views on gender and their role in the organization. In the article, author Sarah Trillin wrote that she interviewed five of the six women who were members, and the article quoted, under fake names, five different women.

Several women are quoted talking about the differences between men and women — one woman says, “I do believe men are superior. I think, on the whole, females are a weaker sex” — and criticizing feminism, while others criticize sexism within the organization.

In a letter to the editor in the Yale Daily News at the time, Rao wrote that Trillin interviewed her, and Rao was quoted in a separate Yale Daily News article that identified her as one of the women in Trillin’s piece. It’s not clear from the article which of the women quoted is Rao, and, reached by phone on Sunday, Trillin told BuzzFeed News that she did not remember whom she interviewed.

More than 1,000 copies of the magazine were stolen shortly after it was published, according to the account in the Yale Daily News, and in her letter to the editor, Rao wrote that the Party of the Right “never condoned such an activity.” She accused Trillin of selectively choosing quotes from the women she interviewed to support “preconceived notions,” and wrote that the piece presented “half-truths at best.”

Rao did not list Trillin’s article in the part of her Senate questionnaire that asks nominees to list interviews they’ve given to “newspapers, magazines, or other publications.” In her letter to the editor in 1993, Rao wrote that Trillin told her the interview was research for a class and never mentioned it might be published.

“Collegiate scribblings”

Some court-watchers have argued against giving weight to nominees’ undergraduate writings — David Lat, editor-at-large of legal news site Above the Law, wrote earlier this year in an op-ed in the Wall Street Journal that, “Collegiate scribblings from decades ago should have no bearing on one’s fitness for public office, and making an issue of them is bad for the country.”

Asked about that, Aron said that Rao had decades to disavow what she wrote in college and had not. Aron pointed to a speech Rao gave in June that, according to notes that she included in her nomination materials, indicated that Rao spoke about how she “enjoyed participating in the debates of that time with my classmates.”

Rao’s writings since college continued to underscore her conservative leanings, but they changed in substance and tone — she’s written multiple scholarly papers on the subject of human dignity as it relates to constitutional rights, and her op-eds don’t use the kind of rhetoric she embraced in her early twenties. Democrats are likely to ask her about her views on executive power — she wrote a 2009 law review article about the president's broad authority to “exercise his constitutional judgment,” for instance — agency power, and other issues she’s written about more recently. But she hasn’t dived deep into the political fray in the same vein as she did in college.

Rao hasn’t had a confirmation hearing yet. Her nomination was returned to the White House at the end of the last Congress earlier this month, along with dozens of other judicial nominees who were still pending. The White House has yet to announce re-nominations, but is expected to put Rao back up for the DC Circuit.

Rao has long been an influential legal voice on the right, and was an early favorite for Kavanaugh’s seat. She clerked for Justice Clarence Thomas, served in the George W. Bush administration, and is a longtime member of the Federalist Society, a conservative lawyers group. Her nomination to the DC Circuit, which is the main court for disputes over agency power, was backed by former White House counsel Don McGahn, who saw the appointment of conservative judges as part of a broader effort to scale back the power of the administrative state.

Rao has led the Trump administration’s deregulation push; the Senate confirmed her as head of the Office of Information and Regulatory Affairs in July 2017. She previously was a professor at Antonin Scalia Law School at George Mason University, where she founded the Center for the Study of the Administrative State.

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