Bent on ‘destroying’

Dems hope to draw blood from potential Trump SCOTUS pick

Conservatives say liberals are bent on ‘destroying’ the activist Neomi Rao before Trump can put her on his Supreme Court short list.

By ANDREW RESTUCCIA, GABBY ORR and ANITA KUMAR

When the conservative lawyer Neomi Rao appears before the Senate Judiciary Committee this week, she’ll be interviewing for a job on the country’s second most powerful court.

But both her allies and enemies will be watching with something even bigger in mind: her viability as a future Supreme Court nominee.

Growing buzz on the right about Rao, a legal scholar and Trump administration regulatory official, has raised the stakes of her Tuesday confirmation hearing to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals.

Republicans expect Democrats to contest Rao’s nomination with particular energy given what White House allies call the prospect that the 45-year-old former law professor could be on deck for a Supreme Court seat. A recent Wall Street Journal editorial said the left is intent on publicly “destroying” her.

White House aides and outside conservatives close to the president have been quietly helping Rao prepare for her confirmation hearing for weeks. Working with White House lawyers and communications staffers, Rao has been practicing her testimony and preparing answers to sharp questions about her experience and her record shaping regulations on behalf of the president.

While there is no current vacancy on the Supreme Court, the recent health issues of 85-year-old Justice Ruth Bader Ginsburg have the White House and its allies starting to prepare for a another potential high court nomination battle just months after Kavanaugh’s bitter October confirmation ordeal.

Some liberals hope to undermine Rao’s credentials even before she can assume a seat on the federal bench, sending a warning shot to the White House that they’d better think twice before nominating her to the high court.

In a Jan. 31 letter to members of the Senate Judiciary Committee, a top official with the liberal People for the American Way blasted Rao for holding “a dangerously reactionary view of the Constitution” and “inflammatory statements and writings on a wide variety of civil rights and other issues.” The letter noted that Trump is “apparently considering her for the Supreme Court should there be a vacancy.”

Conservatives are discouraging talk of Rao as a future justice, recognizing that it will only draw more scrutiny of her record, which has recently been criticized over controversial positions like her defense of dwarf-tossing and past skepticism of date rape claims.

“It’s not in the interest of people trying to get her confirmed to cast her as a future Supreme Court contender, but that is how she will be treated by the Democrats,” said a Republican familiar with the process who requested anonymity in order to speak candidly about her confirmation process. There’s “no question [Democrats] will seek to tarnish her and weaken her prospects as much as they can,” this person added.

Rao is not currently on a list of Supreme Court contenders Trump first released as a candidate and then updated in November 2017, after consultations with two conservative groups, the Federalist Society and the Heritage Foundation. In an interview with the Daily Caller published Wednesday, Trump said it was “highly likely” that he would choose his next high court nominee from that list.

But the White House is weighing adding new names as early as this spring, according to two people familiar with the matter, and influential conservatives are pushing for Rao to be among them — despite her lack of prior experience on the federal bench.

Rao is a conservative legal community star who founded the Center for the Study of the Administrative State at George Mason University’s law school —a hothouse of ideas about limiting the federal government’s authority and size.

Earlier in her career, Rao clerked for Justice Clarence Thomas, worked for then-Sen. Orrin Hatch (R-Utah) on the Judiciary Committee and served in President George W. Bush’s White House. She went on to oversee Trump’s efforts to roll back Obama-era regulations as the head of the Office of Information and Regulatory Affairs, an obscure arm of the White House that wields substantial influence over every regulation imposed by the federal government. If confirmed, she would be the first Indian-American woman to serve on the DC Circuit.

Adam Kissel, a former Trump deputy assistant secretary in the Department of Education who knows Rao, said she “knows the whole administrative state from the inside.”

“If you want a judge or justice who understands the issues of Executive Branch power and core principles like separation of powers, you should be excited about Neomi Rao,” he added.

For now, White House aides and influential conservative legal scholars are wary of positioning Rao as a serious candidate for the high court, and are still nursing battle scars from Kavanaugh’s calamitous Supreme Court confirmation.

But they understand that another confirmation battle could be around the corner. Ginsburg underwent surgery in December to remove two cancerous nodules from her left lung, causing her to miss oral arguments earlier this month for the first time in her career on the bench.

Democrats are praying that Trump won’t be able to replace one of the court’s most liberal justices with another conservative, moving the court farther to the right than it has been in decades. They are vowing to fight another Trump nominee with all their power.

Noting that “[t]he left is afraid she might someday be a Supreme Court nominee,” the Wall Street Journal’s editorial board warned last week that Rao could get “Kavanaughed.” It pointed to a recent BuzzFeed story detailing some of her collegiate writings, including an op-ed on date rape arguing that if a woman “drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”

Democrats deny they’re treating Rao differently than any other nominee to serve on an influential court like the DC Circuit. “Regardless of whether conservatives are floating her as a potential Supreme Court nominee, she was always going to be controversial and get a lot of scrutiny,” a Senate Democratic aide said.

Democrats on the Judiciary Committee have been digging into Rao’s background and are planning to pummel her with questions about her lack of experience practicing law, her central role in Trump’s efforts to roll back regulations, her previous writings that the president has the authority to remove top officials at independent federal agencies and her college op-eds, according to aides.

As for the Journal’s criticism of the focus on her college writing, the aide said it’s important to determine whether she still holds those perspectives. “To my mind, that’s what makes them at least still relevant,” the aide said. “It’s not clear whether these are just things she wrote as a young person or if they’re things she still believes today.”

“A controversial record coupled with no relevant experience raises serious questions about her fitness for the bench — especially to a court that is widely considered to be the second highest court in the country,” a second Senate Democratic aide said.

The White House is already reaching out to conservative groups to prepare for Ginsburg’s possible death or departure from the court. People close to the White House said Rao is among several contenders to replace her.

But whether Rao is ultimately picked will likely depend on the timing of a potential opening. Because Rao has no prior experience as a judge, conservative activists think she’d need to spend at least a year on the D.C. Circuit before she’d be seen as a top contender for the Supreme Court.

“The idea that she would just leapfrog onto the court without a jurisprudential record is fanciful,” a prominent conservative legal figure said.

There are other factors that could count against her as well. The Supreme Court already has several alumni of the DC Circuit, including Kavanaugh, Justice Clarence Thomas and Chief Justice John Roberts. Trump may want to choose a justice from outside the Washington bubble. And several conservatives said privately that they are unsure of where Rao might fall on social issues since she’s spent much of her career focused on deregulation and administrative power.

“She’s seen as hard-line in terms of the administrative state,” said the Republican closely tracking Rao’s nomination. “But there’s a large question mark on social issues and the legal doctrines that would address them."