Neomi Rao testifies before the Senate Judiciary Committee. Photo: Diego M. Radzinschi/NLJ
Neomi Rao, whose college writings blaming women for date rape raised questions about her fitness for the federal bench, was confirmed Wednesday to succeed Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit.
Rao, the Trump administration's top regulatory official, was confirmed 53 to 46 by the U.S. Senate.
Rao's confirmation makes her the 36th federal appeals nominee confirmed during the Trump administration, which made a priority of pushing through judges in the Republican-controlled U.S. Senate. Trump has filled 20 percent of the entire federal judiciary, according to a new Bloomberg Law analysis.
Rao becomes the Trump administration's second successful appointment to the D.C. Circuit. Former Trump White House lawyer and Jones Day partner Gregory Katsas was confirmed in November 2017 to the D.C. Circuit, whose docket is teeming with administrative and regulatory disputes but not as many flashpoint cases involving abortion and religion. Still, the U.S. Supreme Court used a D.C. Circuit ruling in 2008 to expand the rights of Americans to possess firearms in their homes.
Rao, as her nomination was pending, faced some questions from Senate Republicans about her stance on abortion. Sen. Josh Hawley, R-Missouri, and a former clerk to Chief Justice John Roberts Jr., suggested Rao was pro-choice and that she would agree with more liberal judges to expand certain rights. Hawley's commentary drew ire from some conservatives, and he ended up voting in support of Rao's nomination.
Earlier, Rao endured a blitz of attention about her writings at Yale University in the 1990s about sexual assault and campus multiculturalism. She told senators that some of her writing, looking back on it now, made her "cringe."
“The Senate voted today to confirm Neomi Rao for Brett Kavanaugh’s old seat on the D.C. Circuit over the objections of advocates and communities representing millions of Americans, including sexual assault survivors, people of color, LGBTQ people, women, and people with disabilities," Nan Aron, president of the liberal Alliance for Justice, said in a statement.
Carrie Severino, chief counsel for the conservative Judicial Crisis Network, said in a statement: “Thank you Leader McConnell for standing up to Senate Democrats’ bullying tactics and spearheading Neomi Rao’s confirmation. Rao’s experience and intellect make her uniquely qualified to fill Justice Kavanaugh’s shoes on the D.C. Circuit Court of Appeals."
Rao joins the federal appeals bench from the Office of Information and Regulatory Affairs, or OIRA, where she was the administrator.
"Rao's experience at OIRA and her expertise as a constitutional scholar will make her an outstanding judge on the D.C. Circuit," former Trump White House lawyer Michael McGinley, now at Dechert, said.
Rao would recuse in one big case that is likely to arrive in the D.C. Circuit in the coming weeks. A Washington federal trial judge reinstated an Obama-era rule that requires major employers to disclose workforce pay data broken down by job category, sex, race and ethnicity. The ruling directly rebuked Rao, who had played a primary role in stopping the new rule from taking effect.
Rao is the sixth federal appeals judge confirmed this year. The Senate on Tuesday confirmed Lowenstein Sandler partner Paul Matey for a seat on the Third Circuit. The confirmation was remarkable in that it marked the first time a federal appeals court switched from a majority of Democrat-appointed judges to a majority of Republican-appointed ones.
The other appeals judges confirmed this year:
>> Allison Rushing, a Williams & Connolly partner, will serve on the Fourth Circuit. Democrats questioned whether the 37-year-old lawyer had the sufficient experience to sit as a federal appeals judge.
>> The Senate confirmed Justice Department lawyer and former Jones Day partner Chad Readler for the Sixth Circuit. Readler had been a point person in cases challenging the Affordable Care Act and in cases confronting the administration's moves to curtail immigration.
>> Perkins Coie partner Eric Miller, was appointed to the Ninth Circuit. Miller joined the bench despite not receiving support from Washington's home-state senators.
>> Eric Murphy, a former Jones Day associate and state solicitor for Ohio, will serve with Readler on the Sixth Circuit.
Six other federal appeals nominees, including a slate for the Ninth Circuit—Kenneth Lee, Daniel Collins and Daniel Bress—and two for the Second Circuit, Joseph Bianco and Michael Park, are awaiting votes.
Neomi Rao Apologizes for Past Writings on Sexual Assault
Williams & Connolly's Allison Rushing Is Confirmed to 4th Circuit Seat
Confirmation of Lowenstein's Paul Matey Flips 3rd Circuit to Republicans
Another Jones Day Alum Snags Sixth Circuit Seat
Perkins Coie’s Eric Miller Approved for 9th Circuit, Despite Blue Slip Flap
C. Ryan Barber contributed reporting from Washington.