We have been told by many in the “conservative” legal movement that judicial supremacism is to be tolerated so long as we can get “our judges” on the courts. If that is where we are putting all our eggs, we better make sure the basket holds and that we indeed are nominating the best possible people to fill these judicial vacancies. Yet history has shown that conservatives fail to even bat .300, while the Left bats .1000. Why? Because the conservative legal movement isn’t even conservative; it’s libertarian. The latest example is the fight over Neomi Rao to replace Brett Kavanagh on the D.C. Circuit Court of Appeals, which will position her well for future Supreme Court prospects.
The ironclad rule of judicial nominees is that unless they have demonstrated a commitment to our ideals on the 14th Amendment and militantly oppose social transformation through the judiciary in practice, not just in theory, they will disappoint us at best and subvert us at worst. Not a week goes by where we don’t see another example of a Republican judge joining the irremediably broken subversion of the Constitution on some important issue. This is why we have to be extra careful, in particular, with nominees to the D.C. Circuit Court of Appeals, often regarded as the second-most important court in the land.
The Trump administration has nominated Neomi Rao to fill the vacancy on the D.C. Circuit left by Kavanaugh’s appointment to the Supreme Court. Like all high-profile Trump judicial picks, Rao has come under fire from the Left. She was also criticized by some RINOs for ridiculous reasons. But as we’ve seen before, most recently with Kavanaugh himself, coming under fire from the Left doesn’t make someone a conservative, certainly not the best originalist judge we can find.
Now, Sen. Josh Hawley, R-Mo., is raising concerns about Rao’s commitment to originalism on some key issues. Freshmen senators usually don’t pick fights with their own party, certainly not from the Right. Many want him to sit down and shut up. But he should be applauded for raising some flags before we fast-track this nominee to the highest level of appellate judgeships and, potentially, to the Supreme Court one day.
As Axios’ Jonathan Swan reported, Hawley is concerned about Rao’s views on abortion and her possible support for substantive due process, a legal fiction used by the Left to create new rights but also supported by some of Rao’s libertarian backers to guard against the regulatory state. Axios reports that Hawley said, “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.” Swan also reports that “another Republican senator reached out to say they had concerns about Rao’s judicial philosophy and views on abortion.”
Rao indicated in her questionnaire for the Senate Judicial Committee that she signed a letter, along with over two dozen Supreme Court law clerks, to the Senate Judiciary Committee in 2014 supporting Obama’s leftist nominee to the Ninth Circuit, Michelle Friedland. She was one of the three judges in that circuit to essentially create a right to immigrate and rule that all Somalis, among others, have a right to sue and obtain visas to this country.
In a 2015 interview with NPR, Rao said of the Obergefell gay marriage decision by the Supreme Court, “As a policy matter I’m absolutely pleased with the result, as a political matter.” She went on to say, “The majority’s opinion has some serious problems, because the Constitution is not really a charter for all the policies we like or feel strongly about.”
Sure, you can theoretically have a Cato Institute-style libertarian who is pro-abortion, pro-redefining marriage, and pro-open borders who understands that none of those objectives are in the Constitution, but I’ve yet to see anyone with such political views aggressively push back against them in the court system. They might not initiate these decisions, but will they categorically and aggressively uproot them at the appellate level or avoid even taking the appeals, as we often see with John Roberts? For example, she might not initiate bad decisions on the rainbow jihad or rights to an abortion for illegal aliens, but now that the D.C. appeals court has already issued bad rulings, would she oppose them as her would-be colleague, Karen Henderson, did?
These are legitimate questions. We’ve been scammed time and again, including now with Kavanaugh. Aside from his bad ruling on abortion recently, Kavanaugh explicitly said to Dick Durbin during the confirmation hearing that he disagreed with Henderson’s dissent on whether illegal aliens have a right to an abortion under current precedent. “If she had been an adult, she would have a right to obtain the abortion immediately,” said Kavanaugh last September. The “conservative” legal movement didn’t bat an eyelash at that.
Now that we have a president willing to appoint solid judges and an augmented majority in the Senate, why are we shying away from those potential nominees who have a more definitive paper trail in support of our views? Why are we not vetting these candidates better for their views on sovereignty and the plenary power doctrine at a time when it is of vital importance?
In one of her college writings, addressing judicial activism, Ms. Rao seemed to imply not that judges can’t and shouldn’t make law, but merely that judges shouldn’t hide behind philosophers when doing so to pretend their decisions are rooted in history. “Perhaps, however, extra-legal sources can help judges to determine when a departure from past practice might be necessary—philosophy might be a vehicle for legal change,” wrote Rao in a 1998 University of Chicago law review article. “But legal reasoning includes its own processes for change, and reliance on the past does not bind judges to outmoded principles when social and political understandings have evolved.”
This wouldn’t bother me from someone who had a track record of bold rulings on the courts for years, but coming from someone who is for redefining marriage and is rumored not to be pro-life, this is concerning. Moreover, the way she writes about substantive due process (knowing her libertarian views) should raise more questions. In a long law review article in 2011 titled, “Three Concepts of Dignity in Constitutional Law,” Rao writes blissfully about substantive due process and the “rights” to dignity and privacy in case law. She does question some of its veracity, but then adds that “to the extent that ‘dignity’ stands for what is worthy in human beings, American constitutional law has a long history of treating individual choice and autonomy as an integral and preeminent component of human worth.”
If we only get a few top judicial picks, we must pick those who will say “the oxymoronic ‘substantive’ ‘due process’ doctrine has no basis in the Constitution,” as Clarence Thomas just did in Timbs v. Indiana?
Obviously, we don’t have firm evidence that of her judicial rulings because she has no paper trail as a judge, but haven’t we learned our lesson that we need firm evidence that a candidate is a complete originalist on cultural issues, as well as the administrative state, even when we know he or she is personally pro-life? And certainly when his or her views on abortion are an open question.
Why are social conservatives always thrown to the back of the bus being driven by the Koch progressives in an administration that was supposed to banish them?
Ms. Rao is evidently a champion of fighting the administrative state, which is why the libertarians at the Cato Institute are pushing her nomination.
This is ridiculous. She’s one of the greatest minds on administrative law of her (my) generation. https://t.co/WOroNBLMi6
— Ilya Shapiro (@ishapiro) February 25, 2019
Rao currently works on regulatory policy in the Office of Management and Budget. Working in her favor is her time as a clerk to Justice Clarence Thomas. However, not every Thomas clerk is going to be awesome on everything, just like not every clerk of mushy Republican appointees is necessarily bad on our issues. When it comes to judicial nominees, we must verify, not trust.
The Judicial Crisis Network put out a statement calling Hawley a new Claire McCaskill and comparing his conservative concerns about Rao’s judicial philosophy to the innuendo the Left threw at Kavanaugh in the worst politics of personal destruction. It is also threatening to run $500,000 of ads against him.
Yet Republicans like Tim Scott, after sinking two Trump nominees, Ryan Bounds and Thomas Farr, with criticisms from the Left involving racial demagoguery, don’t get much blowback from this movement, but the minute Hawley raises concerns from the Right, all hell breaks loose. Tim Scott was never threatened with a primary challenge.
There’s no mystery here. The conservative legal movement is no longer conservative; it is libertarian. The direction of the judiciary reflects this, which is why the courts could engage in social transformation without representation on a daily basis without any blowback.
It’s often hard to find qualified conservatives from certain districts or from the Ninth Circuit states, yet Tim Scott had free rein to deep-six a terrific nominee for the Ninth Circuit. He has faced no reprisal from these groups. Yet when it comes to the D.C. Circuit Court, nominees can be chosen from every corner of the country. Shouldn’t we get someone who is a sure thing on issues like sexuality, life, and sovereignty, and shouldn’t we applaud people like Hawley trying to get this right? There are so many people we can pick who would be good on the issues of every faction on the Right. Dismissing Hawley’s concerns by suggesting that Rao is great on administrative law doesn’t speak to these concerns.
Time will tell whether Hawley’s concerns are overblown, but given our past bad experiences, he is definitely right to call for a judicious approach to her confirmation. The reaction to his concerns is worse than any concerns about Rao. It demonstrates we have no organized conservative legal movement left. Let’s be honest: There is a progressive liberal legal movement and a progressive libertarian legal movement. No truly conservative legal movement would continue pushing so many nominees without clear understanding of where they are on so many key issues before the courts if they truly cared about those issues.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.