WASHINGTON – Neomi Rao, President Donald Trump's nominee for a powerful federal appeals court, distanced herself from inflammatory op-eds she wrote in college about date rape, race, gender, and LGBT issues, testifying on Tuesday that some of the language she used makes her "cringe."
Appearing before the Senate Judiciary Committee, Rao fielded questions about the controversial op-eds she wrote as an undergraduate at Yale University in the mid-1990s — including her contention that women who were raped bore some responsibility if they had been drinking — which were first reported by BuzzFeed News last month.
The committee is considering Rao's nomination for US Supreme Court Justice Brett Kavanaugh's former seat on the US Court of Appeals for the DC Circuit. Given the court's prominence — it's the main forum for political legal fights and challenges to executive power — and reports that Rao is a Supreme Court contender, the stakes of her nomination for both Republicans and Democrats are especially high.
In op-eds 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.”
Committee Chair Lindsey Graham kicked off the hearing by asking Rao to address her undergraduate writings. Rao replied that college was "a time of exploration," and that, like many of her peers, she enjoyed engaging in commentary about events going on around campus. But she also generally expressed regret about what she wrote at the time.
"To be honest, you know, looking back at some of those writings, and rereading them, I cringe at some of the language that I used. You know, I was young. It’s over two decades ago now. But, you know, I think I was responding to things that were happening on campus at that time," Rao said. "In the intervening two decades, I like to think that I have matured as a thinker and writer and indeed as a person."
Rao's writings about date rape got the most attention. In addition to writing that women who were too drunk to consent to sex made a choice in how much they drank, Rao in one piece wrote, "Implying that a drunk woman has no control of her actions, but that a drunk man does strips women of all moral responsibility."
On Tuesday, Rao noted that her columns emphasized that rape was a crime and that those responsible should be held accountable, and that she was trying to make the "common sense" observation that there were steps women could take to make it less likely that they'd become a victim.
Republican Sen. Joni Ernst, who has spoken publicly about being a victim of sexual assault, told Rao that her columns "do give me pause." She asked Rao how her thinking on the subject had evolved. Rao said that she would not express herself in the same way, and would not write anything that implied a victim was to blame.
Democratic Sen. Patrick Leahy, noting that he handled rape cases as a prosecutor, said the idea that women are to blame for being raped if they drink too much was a view that resulted in women feeling ashamed to come forward and juries excusing "culpable defendants." He asked Rao if she believed women in those circumstances were in part to blame to if they were raped. Rao said no one should blame a victim, and that she was trying to say, "perhaps not in the most elegant way," that excessive drinking can lead to risky behavior by men and women.
Rao, a former law professor, has served since July 2017 as the head of the Office of Information and Regulatory Affairs, where she's led the Trump administration's deregulation push. She has never served as a judge, but conservatives have frequently pointed to her as a top contender for high-profile judgeships in the Trump administration, including potentially the Supreme Court should another seat open.
Rao will need the support of 51 senators to be confirmed to Kavanaugh's seat on the US Court of Appeals for the DC Circuit, meaning she can lose up to two Republican votes, assuming no Democrats support her nomination.
Ernst also asked Rao about a piece she wrote in college saying that another writer "accurately describes the dangerous feminist idealism which teaches women that they are equal." Ernst asked Rao if she believed gender equality was a dangerous feminist ideal. Rao replied that she "very much" regretted the statement.
"I’ve always believed strongly in the equality of women and men and for equal rights and opportunities for women," Rao said. "I'm honestly not sure why I wrote that in college."
Democratic Sen. Dick Durbin asked Rao what she meant when she referred to "myths" about AIDS and sexual and racial oppression in her college writings. Rao said she couldn't remember now exactly what she meant, but generally she was idealistic at the time about race relations, and was inspired by Martin Luther King Jr.'s teachings about judging a person by the content of their character and not their skin color.
"Ms. Rao, I would really struggle to reconcile what you said about racial oppression as a myth with the legacy of Dr. Martin Luther King," Durbin said. "I can't understand that brand of idealism."
A group of women sitting in the back row of the hearing room wearing black shirts with quotes from Rao's college writings snapped in support as Durbin spoke.
Republican Sen. Mike Lee criticized the focus on Rao and other nominees' early writings, saying he didn't see anything "disqualifying" in what Rao had written two decades ago.
"Judicial nominations have become a bloodsport. We've convinced ourselves that because judges are important, it's all fair game," Lee said. "That's not right, that shouldn't be the case here."
Another Trump judicial nominee, Ryan Bounds, ultimately had his nomination for a seat on the 9th Circuit pulled amid controversy over his college writings last summer. Like Rao, Bounds was criticized for using racial slurs he accused others of using in a piece he wrote as an undergrad.
Sen. Dianne Feinstein, the committee's top Democrat, pressed Rao on another issue — whether she would recuse from cases involving decisions she'd made as an administration official. Rao said she would consult the standards for recusal, court precedent, and her colleagues on the bench.
Feinstein and Democratic Sen. Amy Klobuchar pressed Rao about the recusal issue. The DC Circuit is the main court for challenges to agency actions, and it's likely that if Rao is confirmed, the court would take up cases about regulatory action that Rao worked on in her current post. Feinstein contrasted Rao's response to testimony from DC Circuit Judge Greg Katsas at his confirmation hearing in October 2017 — Katsas had served as deputy White House counsel, and said he would recuse from any matter he worked on.
Rao said that whether a judge should recuse was often specific to the facts of the case at hand, and that overseeing regulatory policy was different from being a lawyer providing legal advice.
Feinstein and other Democrats pushed Rao to explain decisions by the Trump administration to scale back or withdraw certain regulations, including fuel efficiency standards, data collection requirements for workplace injuries, and antidiscrimination housing rules. Rao largely declined to discuss the substance of those issues, saying that any policy agenda was set by agencies, and her role was to coordinate regulations across the administration and make sure agencies are following the law.
Rao has written and spoken publicly in support of the Trump administration's efforts to shrink the power of the "administrative state." Republican Sen. Marsha Blackburn asked Rao what she's done to support those deregulation efforts, and Rao replied that her office has focused on moving forward with regulatory reform "in a way that gets government out of the way where it's not working."
Democratic Sen. Richard Blumenthal asked Rao about comments she made at an event in November 2014 — "more recent statements that make me cringe," Blumenthal said — in which she referred to the Gun-Free School Zones Act and parts of the Violence Against Women Act as "grandstanding statutes," since their provisions were covered by state or other laws. Blumenthal asked Rao if she believed those laws were "grandstanding," and Rao said no, leading Blumenthal to question what kind of judge Rao would be if she said something she didn't believe. Rao said she made the comment in the context of interviewing another person about the role of the US Supreme Court.
Democrat Sen. Cory Booker and Republican Sen. Ted Cruz briefly sparred over questions that Booker asked Rao about LGBT rights. Booker had asked Rao if she believed gayrelationships are immoral. Rao initially questioned the relevance of that, but then said no, she did not believe that. Booker then asked if she believed gay relationships are a sin. Rao said she would set aside any personal beliefs if confirmed. He asked Rao if she'd ever had an LGBTQ person work for her — he first asked if she'd had any LGBTQ law clerks, and Rao reminded him that she's never been a judge — and Rao said she didn't know.
"To be honest, I don't know the sexual orientation of my staff," Rao said. "I take people as they come, you know, irrespective of their race, ethnicity, sexual orientation. I treat people as individuals."
Cruz said he was "troubled" by what he saw as attacks by Democrats on nominees' religious beliefs and questions about what is sinful. Booker later said he agreed with Cruz about the importance of protecting religious freedom, but that any discrimination should not be tolerated, and that religion historically was used as a "ruse" to discriminate against African Americans.