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Judge Neomi Rao

Judge on the U.S. Court of Appeals for the D.C. Circuit

Born: 1973

Appointed By: Donald Trump

Sworn In Date: March 18, 2019

CJR Status: Confirmed, Prospective

Red List Note

This prospect is designated as a red list candidate. The purpose of the “red list” designation is not to denigrate a prospect but rather to explain that serious concerns make them untenable given the availability of “green list” prospects that do meet the exceedingly high standard necessary for Supreme Court prospects.

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Topics

• In Brief

  While Judge Rao Has A Few Conservative Associations, She Has Not Evidenced A Strong Worldview Consistent With The Standards Of Other Prospects

  • Conservative associations
    • The Heritage Foundation honored Rao with its Distinguished Alumni Award in 2018. [1] Rao has also been a member of the Federalist Society since 1996.[2]

  • Questionable associations
    • Rao was a participant in the Young Professionals Program of the Aspen Institute, an international nonprofit organization whose funders include the Carnegie Corporation and the Bill and Melinda Gates Foundation.[3]
  • Faith & Worldview
    • Judge Rao “was raised in an immigrant family of Zoroastrian tradition and converted to Judaism when she got married.”[4]

  At Rao’s Confirmation Hearing for the D.C. Circuit, Conservative Senators Expressed Serious Concern and Warned Against Placing Her on the Supreme Court.

  • Senator Cruz said Rao’s: “academic and professional background is particularly well-suited for the cases that go through the D.C. Circuit. I would note that my assessment might be very different were this a consideration for the U.S. Supreme Court.”[5]
  • Senator Ernst said: “should Ms. Rao be nominated for another court at another time, my decisions, and my vetting process and considerations may be very different.”[6]

  Outside Of That Hearing, Senator Hawley Expressed Serious Concerns About Rao

  • Hawley stated:“I have heard directly from at least one individual who said Rao personally told them she was pro-choice. I don't know whether that’s accurate, but this is why we are doing our due diligence.”[7]
  • In the Senate Questions-for-Answer, Hawley asked Rao several questions targeting her views on abortion, all of which she refused to answer.
    • Hawley asked: “In your article Three Concepts of Dignity in Constitutional Law [], you quote Professor Reva Siegel's characterization of the Supreme Court's holding in Gonzales v. Carhart [], as being based on ‘gender- paternalist justification[s] for abortion restrictions’. . . .Do you agree with Professor Siegel's view of the Supreme Court's holding in Carhart?”[8]
    • Rao responded: “The purpose of this article was to identify and examine different conceptions of dignity used by constitutional courts and I cite many cases to elucidate these different conceptions. I quote Professor Siegel's view of Carhart, because she characterizes the case as demonstrating a conflict between two dignities. As a nominee to the court of appeals, it would be inappropriate for me to opine on the merits of Siegel's view of a Supreme Court precedent.”[9]
    • Hawley also asked how the Supreme Court’s holding in Planned Parenthood of Se. Pa. v. Casey would “extend, modify, or replace” the holding in Roe v. Wade[10]
    • Rao responded: “Casey and Roe are precedents of the Supreme Court that I would faithfully follow if confirmed. As a nominee to the court of appeals, it would not be appropriate for me to opine on the relationship between Supreme Court precedents, particularly as the scope of Casey and Roe continue to be the subject of litigation in the federal courts. . . ..”[11]
    • Rao even refused to answer: “Do you believe that the promotion of moral behavior and the expression of moral judgment are legitimate government interests?”[12]
    • Although Rao refused to answer questions on abortion issues, she chose to explain her understanding of Washington v. Glucksberg when asked by Senator Hawley.[13]

  Rao Has Espoused Liberal Views On LGBT Issues:

  • Rao has stated that she is pleased with the outcome of Obergefell from a political standpoint but not satisfied with the methods utilized by the majority to reach that outcome.
    • Rao said: “I’m absolutely pleased with the result [of the Obergefell case] as a political matter, but I think the majority’s opinion has some serious problems because the Constitution is not really a charter for all the policies that we like or feel strongly about – and so I’m concerned about the fact that the Court has taken this issue out of the democratic process.”[14]
  • Rao has made the non-sensical argument that “no one knows” whether the source of sexuality is biological or social.
    • She stated, “[N]o one knows whether sexuality is a biological phenomenon or a social construct. The truth may lie somewhere in the middle.”[15] She goes on to describe sexuality as an “attribute of an individual.”[16]
  • Rao opposed state efforts to protect marriage as “exclusionary.”
    • Rao stated back in 2013 that “[p]ublic opinion is shifting against an exclusionary definition of marriage, a change that I support as a political matter.”[17]

  Rao Has Made Problematic Statements On Abortion In Her Past Legal Writings

  • Rao has described the pro-life movement as “anti-abortion” rather than pro-life.[18]
  • Rao wrote that Planned Parenthood v. Casey “treated a woman’s right to choose an abortion as part of her constitutionally protected liberty, because her choice implicated both dignity and autonomy.” [19]

  Rao Has Problematic Views On Judicial Restraint and Separation of Powers:

  • Rao said: “The Supreme Court gets the final word with regard to Constitutional interpretation.” She continued: “A nominee’s judicial philosophy is important because on the Supreme Court the only real restraint is self-restraint.”[20]

  Rao Joined a Problematic Opinion on Government Overreach With Respect To COVID-19

  • Judge Rao joined an opinion written by Judge Rogers which held that the Association of American Physicians and Surgeons lacked Article III standing to sue Congressman Adam Schiff, who wrote letters to social media companies expressing concern about their publication of the Association’s vaccine-related information on their platforms.[21] This opinion shockingly claimed that the Association, which faced demonetization on these platforms, had suffered no injury-in-fact.[22]

   

  [1] Neomi Rao, Responses to the United States Senate, Committee on the Judiciary, Questionnaire for Judicial Nominees, at p. 14, https://www.judiciary.senate.gov/imo/media/doc/Neomi%20Rao%20SJQ%20-%20PUBLIC.pdf.

  [2]  Neomi Rao, Responses to the United States Senate, Committee on the Judiciary, Questionnaire for Judicial Nominees, at p. 4, https://www.judiciary.senate.gov/imo/media/doc/Neomi%20Rao%20SJQ%20-%20PUBLIC.pdf.

  [3] Funders, Aspen Institute, https://www.aspeninstitute.org/programs/national-commission-on-social-emotional-and-academic-development/funders/.

  [4] Post Editorial Board, Cory Booker makes himself look the fool, again, New York Post (Feb. 6, 2019), https://nypost.com/2019/02/06/cory-booker-makes-himself-look-the-fool-again/.

  [5] Executive Business Meeting, U.S. Senate Committee on the Judiciary (Feb. 28, 2019), https://www.judiciary.senate.gov/committee-activity/hearings/02/28/2019/executive-business-meeting, at 42:12-42:30. (emphasis added).

  [6] Executive Business Meeting, U.S. Senate Committee on the Judiciary (Feb. 28, 2019), https://www.judiciary.senate.gov/committee-activity/hearings/02/28/2019/executive-business-meeting, at 45:52-46:03. (emphasis added).

  [7] Jonathan Swan, Concerns Rise Over Neomi Rao, Trump’s D.C. Circuit Nominee, Axios (Feb. 24, 2019), https://www.axios.com/2019/02/25/neomi-rao-dc-circuit-nominee-josh-hawley-concerns.

  [8] S. Questions for Answer, Question from Senator Hawley. Question #4a.

  [9] S. Questions for Answer, Question from Senator Hawley. Question #4a (emphasis added).

  [10] S. Questions for Answer, Question from Senator Hawley. Question #6.

  [11] S. Questions for Answer, Question from Senator Hawley. Question #6 (emphasis added).

  [12] S. Questions for Answer, Question from Senator Hawley. Question #8.

  [13] S. Questions for Answer, Question from Senator Hawley. Question #5.

  [14] “Supreme Court Makes Same-Sex Marriage Legal Nationwide,” WBUR (June 26, 2015); https://www.wbur.org/onpoint/2015/06/26/same-sex-marriage-legal, at 2:16 – 2:49 (bold and emphasis added).

  [15] Neomi Rao, Queer Politics, The Yale Herald (Nov. 11, 1994). Link here (bold and emphasis added).

  [16] Neomi Rao, Queer Politics, The Yale Herald (Nov. 11, 1994). Link here (bold and emphasis added).

  [17] Neomi Rao, The Trouble with dignity and Rights of Recognition, 99 Va. L. Rev. 29, 34 (2013). Link here (bold and emphasis added).

  [18] Annie Karni and Maggie Haberman, Senator Josh Hawley Raises Questions About Neomi Rao’s Abortion Stance, The New York Times (Feb. 26, 2019), https://www.nytimes.com/2019/02/26/us/politics/josh-hawley-neomi-rao-abortion.html.

  [19] Annie Karni and Maggie Haberman, Senator Josh Hawley Raises Questions About Neomi Rao’s Abortion Stance, The New York Times (Feb. 26, 2019), https://www.nytimes.com/2019/02/26/us/politics/josh-hawley-neomi-rao-abortion.html.

  [20] Neomi Rao, “Sotomayor Confirmation Hearing, Day 4, Legal Scholars Panel,” C-SPAN (July 16, 2009), https://www.c-span.org/video/?287762-106/sotomayor-confirmation-hearing-day-4-legal-scholars-panel at 31:25 (emphasis added).

  [21] Ass'n of Am. Physicians & Surgeons, Inc. v. Schiff, 455 U.S. App. D.C. 324, 23 F.4th 1028 (D.C. Cir. 2022). Link here.

  [22] Ass'n of Am. Physicians & Surgeons, Inc. v. Schiff, 455 U.S. App. D.C. 324, 23 F.4th 1028, 1033 (D.C. Cir. 2022). Link here.