It’s rare to see members of an ethnic group to publicly oppose the promotion of one of their own to a prominent position.
Yet, that’s what’s happening after Donald Trump nominated Neomi Rao to the United States Court of Appeals for the District of Columbia. The highly visible seat was formerly occupied by Justice Brett Kavanaugh who is now on the Supreme Court.
“We are deeply alarmed by Neomi Rao’s record, particularly around gender rights, and we do not believe that she will bring independence and fairness to the federal bench,” reads the letter opposing Reo’s nomination and signed by 70 prominent Indian American human rights activists, law professors, lawyers and survivors of sexual assault and their advocates.
In addition, Reo was sharply questioned by Indian American Sen. Kamala Harris (D-CA.) who is on the Senate Judiciary Committee who must approve Reo’s nomination.
Harris asked Rao to explain her argument, from her 1993 piece:
“Just as women want to control their education and then choose their career, similarly, they must learn to understand and accept responsibility for their sexuality. The terminology of ‘date rape’ removes the burden of sexual ambiguity from the woman’s shoulders. The controversy has been painted in terms of ‘yes’ and ‘no’, reducing sex to something merely consensual.” (The Feminist Dilemma, 1993)
“In your current view, when does no not mean no?” asked Harris, a former prosecutor and California’s Attorney General.
“Senator, no means no,” said Rao. “I regret writing that when I was in college.”
According to HuffPost, Harris continued her aggressive questioning of Rao on her other claims in a 1994 piece:
“Unless someone made her drinks undetectably strong or forced them down her throat, 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 a part of her choice.” (Shades of Grey (Yale, 1994)
“Senator, I was only trying to make the commonsense observation about the relationship between drinking and becoming a victim,” said Rao.
“Do you stand by those comments?” asked Harris.
“I do not,” Rao replied. “I would not express myself that way today.”
If successful Reo, whose hearings began Tuesday (Feb. 6) in front of the Senate Judicial Committee, could be in line for the next SCOTUS opening.
As conservative as Kavanaugh is, Trump wants to replace him in the D.C. appeals court with Reo, who critics claim is even more extremely radical than the now-Justice Kavanaugh. The Indian Americans’ views on LGBTQ rights, climate change, and other subjects have recently produced understandable outrage.
“These writings are not merely inflammatory or controversial,” continues the letter. “This is victim-blaming and rape apologist language, and it has no place in our society, let alone the federal judiciary.”
She has also questionable views on multiculturalism, LGBTQ rights, and affirmative action poo-poohing advocates. “Their touchy-feely talk of tolerance, they seek to undermine American culture,” Reo writes.
The Senate Judiciary Committee, the same body that approved Kavanaugh’s nomination along party lines, will decide Reo’s fate in the coming weeks. With the GOP in the majority, if the committee members vote along party lines, Reo’s nomination will most likely be sent to the full Senate for approval.
The question remains on how some Republicans in the committee will vote, especially Sen. Joni Ernst, R-Iowa, who recently revealed that she was raped in college. She told Rao that her past writings “give me pause.”
“Not just from my own personal experiences, but regarding a message that we are sending young women everywhere,” said Ernst. “I’ve said time and time again that we need to change the culture around sexual violence.”
Like her obviously coached answers to Harris and other Democrats, Reo said that her views have changed and she no longer believes what she previously wrote.
According to HuffPost, Rao largely ignored questions about whether she would recuse herself from cases that are related to her current job as the administrator of the Office of Informational and Regulatory Affairs. The agency is a division of the Office of Management and Budget that evaluates federal government regulations, and in her role here, Rao has helped the Trump administration weaken policies relating to clean power plants, sexual assault regulations and race discrimination in housing.
Unlike the successful nomination of Sri Srnivasan by President Obama to the same court, which drew the whole-hearted support of the Indian American community, Reo’s nomination has drawn negative reactions from the South Asian community.
“Her controversial writings set the stage for the damage she has done as President Trump’s administrator of the Office of Information and Regulatory Affairs (OIRA), where she has led the Trump administration’s aggressive regulatory agenda to undermine civil rights and public protections,” said Vanita Gupta, CEO of Leadership Conference on Civil and Human Rights and former head of the Civil Rights division of the DOJ.
“Rao’s demonstrated hostility to the civil and human rights of all should disqualify her from a lifetime appointment on the federal judiciary. We urge all senators to reject her nomination,” Gupta said in a strongly worded statement.
“Neomi Rao made excuses for sexual assault, blocked women’s access to reproductive health and would allow healthcare providers to deny care to LGBTQ patients,” said Indian American Rep. Pramila Jayapal, D-Wash.
“This is simply not appropriate for someone who wishes to serve on a federal bench,” said Jayapal, the first Indian American woman ever elected to the House of Representatives. The Senate Judiciary Committee “should reject” Rao, she said on Feb. 4.
Letter:
February 4, 2019
Dear Chairman Graham and Ranking Member Feinstein:
We write to share our concerns with you and the members of the Senate Judiciary Committee regarding the confirmation of Neomi Rao to the United States Court of Appeals for the District of Columbia Circuit.
We are a group of 70 South Asian American women who are civil and human rights lawyers, law professors, and advocates of survivors of violence. We firmly believe in the importance of a diverse federal judiciary, and it is not lost upon us that if confirmed, Neomi Rao would be the first South Asian American woman to sit on a federal appellate court. However, we are deeply alarmed by Neomi Rao’s record, particularly around gender rights, and we do not believe that she will bring independence and fairness to the federal bench.
As the head of the Office of Information and Regulatory Affairs (OIRA), Rao is the Trump Administration’s point person to deregulate public protections that benefit all Americans. Rao’s policy decisions have led to the rollbacks of public protections relied upon by vulnerable communities including women, survivors of sexual violence, and LGBTQ people. In 2017, Rao gutted an equal pay initiative that required employers to collect data on wages by sex, race, and ethnicity,claiming that it was “unnecessarily burdensome.” OIRA also vetted the Department of Education’s draft proposed rules that seek to undermine civil rights protections for sexual assault survivors in schools under Title IX. According to civil rights organizations, these proposed rules would discourage reporting of sexual assault, prioritize assailants over survivors, and only consider the cost savings to schools without any consideration of the costs of sexual violence on survivors. Rao is also in the process of finalizing a new rule that would allow health care providers to deny medical care to LGBTQ patients, women seeking reproductive health care, and others based on the provider’s “conscientious objections.” Rao’s proclivity to choose institutions and corporations over people is deeply troubling.
In addition, Rao has a long history of alarming viewpoints about sexual assault, multiculturalism, LGBTQ rights, affirmative action, and people with disabilities. Here are a few of them:
“Unless someone made her drinks undetectably strong or forced them down her throat, 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 a part of her choice.” (Shades of Grey (Yale, 1994)
“Just as women want to control their education and then choose their career, similarly, they must learn to understand and accept responsibility for their sexuality. The terminology of ‘date rape’ removes the burden of sexual ambiguity from the woman’s shoulders. The controversy has been painted in terms of ‘yes’ and ‘no’, reducing sex to something merely consensual.” (The Feminist Dilemma, 1993)
These writings are not merely inflammatory or controversial. This is victim-blaming and rape apologist language, and it has no place in our society, let alone the federal judiciary.
Similarly, Rao has expressed viewpoints on multiculturalism, LGBTQ rights, and affirmative action that are problematic. She has derided those working for diversity as “multiculturalists” (“[U]nderneath their touchy-feely talk of tolerance, they seek to undermine American culture”), and diminished the long-standing struggle for LGBTQ rights as part of “[t]rendy political movements.” More recently, in a 2009 law review article evaluating Justice Ginsberg’s equality jurisprudence, Rao wrote about affirmative action programs: “They confer benefits along the lines of race and use race as a proxy for disadvantage and inability to compete on an equal footing. This then perversely reinforces the historic associations between race and disadvantage.” And in a 2013 law review article, Rao criticized the Supreme Court’s decision in United States v. Windsor (which struck down the Defense of Marriage Act) arguing that politicians, rather than courts, should resolve such issues.
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