WASHINGTON ― Months after confirming Brett Kavanaugh to the Supreme Court amid sexual assault allegations, Republicans are moving forward with his replacement on a lower court: a nominee with a record of weakening protections for sexual assault survivors and who once argued that women can avoid date rape by staying “reasonably sober.”
Neomi Rao, whom President Donald Trump tapped to fill Kavanaugh’s former seat on the District of Columbia Circuit Court of Appeals, is getting her Senate confirmation hearing on Tuesday. And Democrats on the Judiciary committee are expected to pounce.
Rao, a 45-year-old attorney, runs the federal Office of Information and Regulatory Affairs. She’s never been a judge, but she is on Trump’s shortlist of Supreme Court nominees. She clerked for Supreme Court Justice Clarence Thomas, worked in the White House counsel’s office under President George W. Bush and was a professor at George Mason University School of Law.
Rao has come under fire for controversial articles she wrote from 1992 to 1996 ― she graduated from Yale University in 1995 ― on sexual assault, LGBTQ rights, race, and climate change. Beyond that, in her role at OIRA, a division of the Office of Management and Budget that evaluates federal government regulations, she has helped the Trump administration weaken policies on all of those fronts.
Her past writings on sexual assault raise questions about her bid for a lifetime federal court seat.
In a 1994 op-ed in The Yale Herald, titled “Shades of Gray,” Rao argued that “a woman, like a man, decides when and how much to drink. And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.” She wrote that “a good way to avoid a potential date rape is to stay reasonably sober.”
In an April 1993 piece in the Yale Free Press, titled “The Feminist Dilemma,” Rao argued that the “controversy” over sexual assault and date rape “has been painted in terms of ‘yes’ and ‘no’, reducing sex to something merely consensual.” She said “non-verbal communication plays an undeniable role,” and though she is “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.”
Rao’s record at OIRA isn’t great on policies affecting sexual assault, either.
Since November 2017, she’s stalled proposed guidance from the Equal Employment Opportunity Commission to give employers more information on how to handle sexual misconduct. And under her leadership, OIRA signed off on a proposed rule change by Education Secretary Betsy DeVos that would narrow the definition of sexual harassment and assault on college campuses and strengthen the rights of the accused.
Democrats will be grilling Rao on plenty of topics in Tuesday’s hearing, in part because some on the committee ― Sens. Kamala Harris (Calif.) and Cory Booker (N.J.) ― recently announced presidential bids and will want the limelight. But it’s also because so many of Rao’s past writings on issues like race, sexuality and science are ripe for scrutiny.
She wrote in February 1995 that “Yale has dedicated itself to a relatively firm meritocracy, which drops its standards only for a few minorities, some legacies and a football player here or there.” When she was a junior at Yale, she wrote another article titled ”Separate but More Than Equal,” in which she denounced “special treatment for minority students” and suggested that students of color have an unfair advantage by having “ethnic deans” devoted to assisting them.
She wrote in November 1994 that the push for LGBTQ rights was a “trendy political movement.” She warned in July 1994 that “multiculturalists are trying to “undermine American culture.”
In April 1992, Rao wrote that “the greenhouse effect, the depleting ozone layer, and the dangers of acid rain” are “three major environmental bogeymen.”
She’s affected policies on all of these fronts at OIRA. Under her leadership, the agency has reviewed and is in the process of working with the Department of Housing and Urban Development to roll back protections against housing discrimination based on race. She approved a proposal to rescind the Clean Power Plan, a public protection program that reduced greenhouse gas emissions from power plants. OIRA is also finalizing a new policy proposed by the Department of Health and Human Services that would allow health care providers to refuse to provide care to patients on the grounds of “conscientious objections,” as in LGBTQ patients or women seeking reproductive care.
If confirmed, Rao would be the second Indian-American after Sri Srinivasan to land a seat on the D.C. Circuit, which is considered the second most powerful court in the country.
But, unlike Srinivasan, Rao has drawn opposition from prominent Indian-Americans, such as Rep. Pramila Jayapal (D-Wash.) and Vanita Gupta, the president and CEO of The Leadership Conference on Civil and Human Rights. Groups including the NAACP and Human Rights Campaign have also denounced Rao’s nomination, which means Tuesday’s hearing could be explosive if Democrats are prepared to channel that outrage.
“Neomi Rao is the last person who should sit on this court,” said NAACP President and CEO Derrick Johnson. “The Rao nomination is an insult to communities of color, women, persons with disabilities, and the LGBTQ community. In truth, the nomination is an insult to all Americans.”