Oppose the Confirmation of Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit

Courts News, Courts Resources 02.1,19

Dear Senator:

On behalf of The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, I write in strong opposition to the confirmation of Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit.

Ms. Rao has espoused and advanced extreme ideological views since college. She has advocated against the rights of sexual assault victims, and it would be particularly disturbing to confirm her for the vacancy on the D.C. Circuit left by the Supreme Court confirmation of Brett Kavanaugh, who was credibly accused of sexual assault. Ms. Rao currently serves as President Trump’s Administrator of the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA), where she was confirmed in 2017 on a near party-line vote in the Senate. This office has been at the center of the Trump administration’s aggressive efforts to undermine vital public protections, and as its head, Ms. Rao has had a platform to put her extreme ideas into action. She has supported numerous policies that have rolled back civil and human rights advances for millions of Americans.[1] The Senate must reject her nomination.

Bias Against Sexual Assault Victims: As a college student, Ms. Rao made several alarming comments about date rape. She suggested that sexual assault victims were partly to blame for being assaulted, and that some women make false rape allegations to avoid accepting responsibility for their actions.

In an op-ed entitled “Shades of gray,” Ms. Rao complained about the “hysteria over date rape” and wrote 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.”[2] She also asserted that “a good way to avoid a potential date rape is to stay reasonably sober.”[3]
In another op-ed, Ms. Rao belittled a student group called Consent that was set up to counsel victims of sexual assault. She wrote: “Consent bills itself as a counseling hotline for those who have been through unwanted sexual experiences. They have a definite ideology, however, which involves treating ‘survivors’ as victims.”[4]
She has written: “The language of ‘date rape’ is something constructed by white middle class academic feminists in prestigious northeastern universities, who fail to consider the extensive sexual ambiguity involved with relationships.”[5] She also wrote that “casual sex for women often leads to regret and a profound loss of self-esteem. This in turn can force women to run from their choices and actions…. when playing the modern dating game women have to understand and accept the consequences of their sexuality.”[6]
Rao praised right-wing commentator Camille Paglia, writing: “Camille Paglia’s view on date rape has often been criticized for its insensitivity because she seems to ‘blame the victim.’ Paglia, however, accurately describes the dangerous feminist idealism which teaches women that they are equal. Women believe falsely that they should be able to go anywhere with anyone.”[7]
Rao criticized the expulsion of a student, David Bialski, who was accused of rape. She wrote: “In this case, the accused faced a smear campaign which included posters, banners and hyperbolic editorials. In response to student outrage, the Executive Committee was more than happy to sit as judge, jury and executioner – expelling Bialski.”[8]

Although Ms. Rao expressed these troubling views years ago, she is currently implementing this dangerous agenda in the Trump administration as the OIRA Administrator. She has supported the effort of the Trump administration to propose new rules to roll back Title IX protections in the context of sexual harassment and sexual assault, and to limit schools’ responsibility for addressing such conduct.[9] Dozens of civil and human rights organizations, including ours, have urged the Trump administration to withdraw this proposed rollback of civil rights protections.[10] In addition, Ms. Rao has also helped block the issuance of guidance recommended by the Equal Employment Opportunity Commission (EEOC) that would help combat sexual harassment in the workplace.[11]

Disparaging Views on Women’s Rights: Ms. Rao has also made disparaging remarks about feminism and women’s rights.

She attacked a campus group called the Women’s Center, which she called “Yale’s effort to placate women by institutionalizing their concerns.”[12] She added: “More than a dozen fiefdoms now exist ranging from Yalesbians to Women of Color for Reproductive Health. The proclamations of oppression emanating from the center have reached such levels of absurdity….”[13]
Rao also wrote: “Women should be able to realize themselves as human beings without identifying themselves as a marginalized group. True liberation cannot come from coddling and support sessions. The real world will simply not wait for women to come out of therapy.”[14]
Rao defended women who opted to have families rather than careers in extreme terms by writing that not all women can be reduced to the “Hillary Clinton bitch-model.”[15] In the same article, she stated that “women might shy away from feminism and its contemporary associations with radicalism and lesbianism.”[16]
In another op-ed, she wrote that “feminism has sold women the lie of fulfillment – the lie that we can have it all” and “When women ask for clean, rational, fair relations between the sexes, they betray their own instincts by subscribing to a horrible, masculine stupidity.”[17]

As the OIRA Administrator, Ms. Rao has taken steps to roll back protections for women in the workplace. She halted an EEOC rule that required large companies to disclose what they pay employees by sex, race, and ethnicity – a rule that was intended to remedy the unequal pay that remains rampant in the American workplace.[18] That decision has been challenged in court and Ms. Rao is a named defendant.

Troubling Views on Race: In her college writings, Ms. Rao made numerous insensitive comments about race and campus affinity groups. She demonstrated deep hostility to classmates who joined organizations that allowed them to interact with students from similar racial backgrounds and experiences.

Rao wrote that “multiculturalism fans the flames of minority resentment against everybody else, including other minorities” and “Martin Luther King Jr. dreamt that one day people would be judged by the content of their character, not by the color of their skin. This dream has no meaning to the multiculturalists, who separate and classify everyone according to race, gender and sexual orientation. Those who reject their assigned categories are called names: So-called conforming blacks are called ‘oreos’ by members of their own community, conservatives become ‘fascists.’ Preaching tolerance, multiculturalists seldom practice it.”[19]
In an op-ed called “Power games,” Ms. Rao lashed out at the “political correctness” on campus and, in particular, identity-based student organizations. She complained about the “politics of identity, in which people separate themselves by race, gender, and ethnicity. Many people find the separation of identity disturbing and regressive…. Leaders of the politics of identity smile kindly and argue that the underprivileged (people of a non-white race and ethnicity) need separation from a hostile power structure.”[20]
Rao demonstrated contempt for two leading African-American public intellectuals of the 1990s, Henry Louis Gates and Cornel West, cynically suggesting that their writings were designed mainly for profit. She stated that “Race may be a hot, money-making issue” and “West and Gates both demonstrate the viability and vitality of one form of racial identity, at least when it comes to public adulation, speaking fees, and book advances.”[21]
In a book review, Ms. Rao praised the author’s skepticism of racial identity, writing that the author “speaks strongly against group rights and group thinking, which encourage a victim mentality. In a rare show of wisdom, he writes, ‘Perhaps it is time to stop thinking of blacks – and having them think of themselves – as a category. Let them rise or fall as individuals.’”[22]
She exhibited hostility to affirmative action, writing 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.”[23] In another piece, she complained that we live in “this age of affirmative action, women’s rights, special rights for the handicapped and welfare for the indigent and lazy…. In our new feel-good era, everybody is okay, and political and academic standards can adjust to accommodate anyone.”[24]
In an op-ed entitled “Speak no evil,” Ms. Rao discussed what she perceived as the lack of attention to an incident on campus in which an African-American student was injured during the hazing process at an African-American fraternity. She complained that “Racial politics make almost any opinion dangerous.”[25]

These types of comments are similar to those made by another Trump judicial nominee, Ryan Bounds, whose nomination to the Ninth Circuit was scuttled last year after Senator Tim Scott objected to their racial insensitivity. In a December 2018 letter to the editor of the Wall Street Journal, Senator Scott wrote that “we should stop bringing candidates with questionable track records on race before the full Senate for a vote.”[26] Ms. Rao is clearly such a candidate.

Ms. Rao’s efforts to diminish marginalized communities of color has continued throughout the years. In 2015, she criticized the Supreme Court’s decision that year in Texas Department of Housing v. Inclusive Communities Project, an important victory for the use of disparate impact in proving housing discrimination under the Fair Housing Act. Ms. Rao accused the Supreme Court of misreading the intent of Congress in passing the Fair Housing Act and said the court had adopted “rule by talking points” over “a government ruled by laws.”[27] She wrote: “The judiciary has a duty to ‘say what the law is,’ not what some lawmakers hoped it would be.”[28] By contrast, this important decision was hailed by the civil rights community.[29]

As the OIRA Administrator, Ms. Rao has worked to undermine disparate impact protections at HUD. Disparate impact theory recognizes that unlawful discrimination can be identified through a policy’s unjustified effect and has been repeatedly validated by federal courts, as in the Texas Department of Housing v. Inclusive Communities Project decision. Ms. Rao has initiated a process[30] to roll back disparate impact protections for communities of color that were implemented by the Department of Housing and Urban Development in 2015. This is part of a larger effort by the Trump administration to undermine disparate impact protections and perpetuate inequality and discrimination across the board.[31]

Hostility to LGBTQ Rights: Ms. Rao also expressed alarming and offensive views about LGBTQ equality.

Rao asserted that “[w]hen homosexuality is viewed as a correctable behavior, it can be judged as being immoral, unnatural, and contrary to religious doctrine.”[32] She also stated: “Because homosexuality, unlike gender and race, concerns a socially unacceptable activity, many gays have responded to the demands of normalcy in radical ways…. Homosexual activism in its most visible form engages mainstream society in a total cultural challenge. The ‘promotion of queer expression’ comes in the form of explicitly sexual printed material, as well as national rallies and marches.”[33]
Dismissing the historic march to equality by the LGBTQ community, Ms. Rao wrote: “Trendy political movements have only recently added sexuality to the standard checklist of traits requiring tolerance.”[34]
Rao ridiculed the Yale Bisexual, Gay, and Lesbian Co-op for “spreading myths about AIDS and ‘raising awareness’ about homophobia/heterosexism. If you didn’t know better, you’d think that Yale was the most difficult place in the world to be gay, rather than one of the easiest.”[35]
In one of her many screeds against multicultural awareness, Ms. Rao wrote: “The multiculturalists are not simply after political reform. Underneath their touchy-feely talk of tolerance, they seek to undermine American culture. They argue that culture, society and politics have been defined – and presumably defiled – by white, male heterosexuals hostile to their way of life. For example, homosexuals want to redefine marriage and parenthood; feminists in women’s studies programs want to replace so-called male rationality with more sensitive responses common to womyn.”[36]
In a 2013 law review article, Ms. Rao criticized the Supreme Court’s ruling in United States v. Windsor, which struck down the Defense of Marriage Act because it permitted federal marriage benefits for opposite-sex couples that it denied for same-sex couples. She argued that politicians, rather than courts, should resolve such issues. She wrote: “The constitutional right at issue – some form of freestanding dignity of recognition – has little connection to our constitutional text or history and leaves important questions unanswered…. The dignity of recognition, no doubt pressing for individuals wishing to be recognized, is better left to the political process.”[37] As we have seen throughout our nation’s history, courts have played a critical role in safeguarding LGBTQ equality, but Ms. Rao rejects that history and would leave the protection of such rights in the hands of politicians.

As the OIRA Administrator, Ms. Rao is in the process of finalizing a new rule that would give a license to discriminate to health care providers who wish to deny medical services to LGBTQ patients, women seeking reproductive health care, and others based on the providers’ religious objections.[38] Ms. Rao is also involved in a process to roll back a rule implementing Section 1557 of the Affordable Care Act that created critical protections for LGBTQ patients.[39]

Offensive Views on Disability Rights: Ms. Rao has defended the cruel and degrading practice of “dwarf tossing,” a dangerous activity in which people compete in throwing people with dwarfism. Dwarf tossing is banned in several states due to the high risk of injury. In criticizing a French law that bans this practice, Ms. Rao wrote that this law “demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.”[40] Ms. Rao has advanced this argument in numerous articles she has written about how courts should resolve disputes involving competing definitions of human dignity.

Ms. Rao’s nomination is opposed by Little People of America, the largest organization representing individuals with dwarfism. They recently wrote a letter to the Senate stating: “We vehemently disagree with Ms. Rao’s view that banning dwarf tossing negates [an] individual’s dignity. A ban on dwarf tossing event[s] significantly reduces the risk of inevitable bodily harm to the person being tossed. We strongly support our community in having individual choice in every aspect of their lives and we advocate for equal employment opportunities so that our community need not be constrained to earning a living by being the recipient of a dehumanizing and injurious activity.”[41]

In opposing Ms. Rao’s nomination, disability rights advocate Rebecca Cokley has powerfully noted: “Dwarf tossing legalizes the treatment of people with my disability as less-than people. As objects. As footballs, if you like…. To me, dwarf tossing is a hate crime. It is an activity that specifically targets a marginalized community because we are marginalized. There is no way you can look at this sort of activity as ‘sport’ instead of assault.”[42]

At OIRA, Ms. Rao has helped implement federal rules to roll back disability rights. For example, a recent rule significantly weakens the protections in the Affordable Care Act for persons with disabilities and chronic medical conditions by incentivizing states to reduce what insurers are required to cover within the ten categories of essential health benefits (including mental health).[43]

Anti-Environmental Views: In college writings, Ms. Rao expressed deep-seated skepticism about environmental protection.

Rao criticized the “dangerous orthodoxy” of a campus environmental organization, stating: “The three major environmental bogeymen, the greenhouse effect, the depleting ozone layer, and the dangers of acid rain, are all cited in [the organization’s] manual though all three theories have come under serious scientific attack.”[44] She also attacked campus environmentalists who “accept issues such as global warming as truth with no reference to the prevailing scientific doubts.”[45]
She also asserted: “After leaving college many student activists – eco-warriors among them – immediately gravitate to Washington, where they can pursue their ideas for forcing Americans to live up to their standards of environmental purity. The scary part is that, despite their college educations, they seem perfectly comfortable discarding scientific evidence and common sense in their crusade to ‘save’ the Earth.”[46]
In an op-ed dripping with sarcasm, she wrote: “When was the last time you hugged a tree? If you don’t remember, you obviously haven’t been on a college campus recently.”[47] She wrote of the “eco-insanity on college campuses” and declared: “I finally resigned myself to sorting my newspapers, aluminum cans and plastic containers – not because the greenies have convinced me this will save the environment, but because recycling is university policy (not to mention Connecticut state law).”[48]

Ms. Rao has brought this anti-environmental mindset to OIRA. She has supported the weakening of public protections against mercury pollution, a troubling decision because high mercury levels have been proven to cause brain damage to infants and young children.[49] She has also supported a proposal to repeal the Clean Power Plan, a major environmental protection effort aimed at combating climate change by reducing greenhouse gas emissions from power generators.[50] The D.C. Circuit resolves many significant environmental disputes, and the addition of Ms. Rao to that court would have a devastating impact on our clean air and water.

Hostile to Women’s Reproductive Freedom: Ms. Rao holds anti-choice views and has advanced them at OIRA. In a 2011 article about how courts treat issues of human dignity, Ms. Rao embraced anti-choice rhetoric, writing: “In Casey, the plurality focused on the inherent dignity of a woman’s freedom to choose an abortion, but minimized the competing inherent dignity of the fetus to life.”[51] In a 1998 article, she criticized Roe v. Wade and said “the Court uses esteemed philosophers to legitimize a controversial perspective. By contrast, there were many persuasive legal arguments against recognizing a constitutional right to abortion.”[52]

At OIRA, she has put her ideology into practice and worked to roll back critical reproductive health care protections. Under a new rule advanced by Ms. Rao, employers who were previously required to provide contraceptive coverage under the Affordable Care Act can now refuse to provide such coverage for nearly any reason just by claiming an objection to contraception.[53] In addition, when OIRA considered a proposed rule that would significantly restructure the federal Title X family planning program (which serves more than four million people a year) and make it impossible for many current providers to participate, it failed to undertake a full analysis of the rule’s economic impact on families and instead only offered a conclusory statement that it would not negatively impact family well-being, despite extensive data to the contrary.[54]

Extreme Views on Role of Government: As the director and founder of the Koch Foundation-funded Center for the Study of the Administrative State at Antonin Scalia Law School, Ms. Rao has advocated a number of controversial positions that would hinder the ability of federal agencies to provide critical legal protections for people. In a publication for the far-right Heritage Foundation, she complained that the United States has “a regulatory state that often operates with minimal congressional guidance, inconsistent presidential direction, and deferential judicial review.”[55] In other words, Ms. Rao believes in weakening agencies by limiting their ability to carry out congressional mandates to protect people. Putting her in charge of the White House office that oversees the implementation of federal regulations is truly letting the fox guard the henhouse, a dynamic that has sadly occurred in agency after agency during the Trump administration. Ms. Rao has also advanced troubling views on presidential power, arguing that presidents “must have the ability to remove all executive branch officers at will”[56] and “after removal from office, a President may be criminally liable for his actions.”[57] In light of the ongoing Mueller investigation into Russian meddling in the 2016 presidential election, it is easy to see why President Trump would want someone with these beliefs sitting on the court that might be asked to adjudicate such issues.

Ideological Affiliations: Ms. Rao has been a member of the Federalist Society since 1996, her first year of law school, and, according to her Senate questionnaire, she has given 32 speeches to the Federalist Society over the past decade. This out-of-the-mainstream legal organization represents a sliver of America’s legal profession – just four percent – yet more than 80 percent of President Trump’s circuit court nominees, and a significant number of his district court nominees, have been Federalist Society members. Ms. Rao served as president of her law school Federalist Society chapter, and she has been deeply involved in this organization ever since. She has served on the Federalist Society executive committee for its Federalism & Separation of Powers Practice Group and its International & National Security Practice Group, and as a member of the Federalist Society Regulatory Process Group, Article I Project, and Faculty Division. Ms. Rao’s zeal for this right-wing organization is so strong that she actually listed her Federalist Society participation as an example of her pro bono work in response to question 25 on her Senate Judiciary Committee questionnaire, which asks nominees to list work they have undertaken “in serving the disadvantaged.” If confirmed, Ms. Rao would bring a clear bias and far-right ideological agenda to the bench, and she would not serve as an objective and fair-minded arbiter.

For the foregoing reasons, The Leadership Conference urges you to oppose the confirmation of Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit. Thank you for your consideration of our views. If you have any questions or would like to discuss this matter further, please contact Mike Zubrensky, Chief Counsel, at (202) 466-3311.

Sincerely,

Vanita Gupta
President & CEO

[1] https://civilrights.org/trump-rollbacks/.

[2] https://assets.documentcloud.org/documents/5684266/01-Shades-of-Gray-Neomi-Rao.pdf.

[3] Id.

[4] https://afj.org/wp-content/uploads/2019/01/04-Yale27s-Mix-of-Undergraduate-Organizations.pdf.

[5] https://afj.org/wp-content/uploads/2019/01/02-The-Feminist-Dilemma.pdf.

[6] Id.

[7] Id.

[8] https://afj.org/wp-content/uploads/2019/01/09-Speak-no-evil.pdf.

[9] https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf.

[10] https://civilrights.org/civil-and-human-rights-community-joint-comment-on-title-ix-nprm/.