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Trump's DC court pick faces first step in what may be another ugly confirmation battle

CNN logo CNN 2/4/2019 By Ariane de Vogue, CNN Supreme Court Reporter
Trump administration regulatory czar Neomi Rao reacts after US President Donald Trump announced his intent to nominate her to fill Brett Kavanaugh's former seat on the D.C. Circuit Federal Court of Appeals during the Diwali ceremonial lighting of the Diya at the White House in Washington, DC, on November 13, 2018. © Jim Watson/AFP/Getty Images Trump administration regulatory czar Neomi Rao reacts after US President Donald Trump announced his intent to nominate her to fill Brett Kavanaugh's former seat on the D.C. Circuit Federal Court of Appeals during the Diwali ceremonial lighting of the Diya at the White House in Washington, DC, on November 13, 2018.

The judicial wars will return to Washington on Tuesday as the Senate Judiciary Committee meets to consider Neomi Rao, President Donald Trump's nominee for newest Supreme Court Justice Brett Kavanaugh's now vacant seat on a powerful appellate court in Washington.

Rao — who serves as Trump's "czar" overseeing regulatory rollbacks — is expected to face fierce questioning from Democrats not just for her work in the Trump administration but for commentary she wrote decades ago as a Yale University student suggesting women should change their behavior to avoid date rape.

Democrats fear that Rao, 45, a conservative woman already attracting mention as a potential Supreme Court nominee, would have a glide path to the nation's highest court if she is confirmed.

She is up for a seat on the US Court of Appeals for the DC circuit, considered by many as the second most powerful court in the land because it reviews the actions of federal agencies. The court is a breeding ground for Supreme Court justices including not just Kavanaugh but Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg and Clarence Thomas.

Rao's nomination also represents the Trump administration's latest effort to reshape the judiciary, with a nominee who is dedicated to reforming the so called "administrative state" — the web of federal agencies that critics say has grown too powerful and unaccountable, implementing regulations that can prove burdensome for business.

Rao, a former clerk to Thomas, currently serves as the administrator of the Office of Information and Regulatory Affairs. It's a little-known entity within the Office of the White House Office of Management and Budget charged with ensuring that federal agencies follow the law and act consistently with the administration's policies.

"Over the past two years, federal agencies have reduced regulatory costs by $23 billion and eliminated hundreds of burdensome regulations, creating opportunities for economic growth and development," Rao wrote in The Washington Post last October.

Rao said the work "represents a fundamental change in the direction of the administrative state" that she said had gone "unchecked for decades" and has contributed to the "incredible economic boon" since Trump took office.

"The Obama administration imposed more than $245 billion in regulatory costs on American businesses and families during its first two years," she wrote.

Her critics say that during the Trump administration, Rao has worked to roll back Title IX protections for survivors of sexual assault on campus, as well as protections against racial discrimination in housing and environmental safeguards.

"It's no coincidence that the federal government office she heads is signing off on policies that harm some of our society's most vulnerable," said Nan Aron, of the progressive Alliance for Justice.

But Case Western Reserve University School of Law professor Jonathan Adler, who supports Rao, pushed back on that characterization.

"The Office of Information and Regulatory Affairs is not developing individual policies," he said "but making sure agencies play by the rules and study the consequences of what they want to do."

Aron's group — still seething over the confirmation of Kavanaugh after being accused of high-school sexual misconduct — brought to light Rao's early writings on date rape and multiculturalism.

In one piece for the Yale Herald written in 1994 entitled "Shades of Gray," Rao responded to an alleged date rape incident on campus by writing: "It has always seemed self-evident to me that even if I drank a lot, I would still be responsible for my actions."

She added: "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."

In another piece for the Yale Free Press in 1993, in she wrote: "Although I am certainly not arguing that date rape victims ask for it, when playing the modern dating game women have to understand and accept the consequences of their sexuality."

Aron said it was "unconscionable" for the White House to have sent forward Rao's name for Kavanaugh's seat after the serious allegations of sexual misconduct were raised against him.

"Her comments on this topic will only serve to undermine American's faith — particularly women — in our courts," Aron said.

Her previous writings have also addressed multiculturalism.

She is Indian American, and the President unexpectedly announced her appointment during a Diwali celebration at the White House. "We were going to announce that tomorrow," the President said in November. "And I said you know, here we are Neomi — we're never gonna do better than this — I thought it was an appropriate place. "

But writing for the Washington Times in July 1994, when she was a senior at Yale, Rao argued that while "diversity bean counters" consider her an Asian-Indian "minority" she found herself in the "awkward position of not considering my race and gender very important."

She added that "today's multiculturalists" consider themselves the "self-appointed heirs of the civil rights movement" but in reality, their message is one of "divisiveness not togetherness."

"The multiculturalists are not simply after political reform," she wrote.

"Underneath their touchy-feely talk of tolerance, they seek to undermine American culture," she continued, adding "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."

Adler points out that the articles were written decades ago.

"It shows how desperate her opponents are that they are trying to make college age writings from decades ago the centerpiece of her opposition," he said.

"The idea that men and women should be held to the same standards has been embraced by judges across the political spectrum in Title IX cases" Adler said. "The idea that such opinions are disqualifying is absurd," he said.

Rao is a graduate of Yale University in 1995 and the University of Chicago Law School. Before her work in the Trump administration, Rao worked at the Antonin Scalia Law School at George Mason University as the Founder of the Center for the Study of the Administrative State.

She was first interviewed for the position in August 2018 by then-White House Counsel Don McGahn. Last month, after Congress failed to act, the White House re-nominated her along with dozens of other nominees.

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