Neomi Rao and the abortion issue [UPDATED]

We’ve discussed the frivolous concerns expressed by Sen. Joni Ernst about Neomi Rao, President Trump’s stellar nominee to fill the vacancy on the D.C. Circuit by Brett Kavanaugh’s elevation to the Supreme Court. Ernst was upset about sensible comments Rao made, as a college student, about date rape. The absurdity of sinking a nominee with outstanding credentials and a powerful critique of the administrative state — or really any nominee — over something like this should be apparent.

Now comes word that Sen. Josh Hawley has a concern about Rao. According to this report, he’s not confident that Rao takes a strong pro-life position.

Hawley reportedly says he “heard directly from at least one individual who said Rao personally told them she was pro-choice.” Whether Rao actually said this or is being undermined by someone who wants to see her nomination fail, I do not know.

I have heard, though, that Rao criticized Roe in her student law review note in 1998, and has been openly critical of the Supreme Court extending constitutional protection to abortion rights and same-sex marriage.

In any event, “pro choice” covers a lot of territory. If Rao said she’s pro-choice, she may have meant only that she agrees that women should have the right conferred by Roe v. Wade. She wouldn’t necessarily agree that the case was correctly decided — anyway, she would be bound, as an appeals court judge to follow Roe — or that additional abortion rights should be conferred.

Hawley reportedly will only support nominees (1) whose record indicates they have respect for what the Supreme Court has called the interests of the unborn child; (2) whose record indicates they will protect the ability of states and local governments to protect the interests of the unborn child to the maximum extent; and (3) somebody who will not extend the doctrines of Roe v. Wade and Casey.

Rao has never been a judge and, to my knowledge, she has not written much on the subject of abortion. Thus, she probably cannot present a record indicating respect for the interests of the unborn child. [But see the update below] I think it’s unreasonable refuse to support a conservative judicial nominee merely because she lacks such a record and/or because of hearsay statements that she’s “pro-choice.”

Hawley, though, is also concerned that some of Rao’s academic work suggests she might be comfortable with the concept of “substantive due process” — a theory that can be used to protect rights, such as the right to an abortion, that aren’t mentioned in the Constitution.

Unlike college op-eds about date rape, this is the sort of thing that Senators considering whether to vote on judges should look at. Hawley is right to want to perform what he calls “due diligence” regarding Rao’s view of substantive due process. He should review her writings carefully and, ideally, discuss them with her.

It’s worth noting, I think, that Marjorie Dannenfelser, president of the pro-life group Susan B. Anthony List, raised concerns about Rao with the White House. But Dannenfelser now reportedly says she’s no longer concerned about Rao’s appointment to the D.C. Circuit (which, again, has no power to overturn Roe v. Wade).

It’s also worth noting that Rao is a protege of Justice Clarence Thomas for whom she clerked. Justice Thomas’ pro-life record is quite strong.

But Sen. Hawley wants to do his own due diligence, and there’s nothing wrong with that.

UPDATE: A reader provides evidence that Rao is sound on the both the dignity of the unborn and substantive due process.

From Neomi Rao, Three Concepts of Dignity in Constitutional Law, 86 Notre Dame L. Rev. 183, 211 (2013):

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.

(Emphasis added)

From Neomi Rao, Note, “A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court,” 65 Univ. of Chi. L. Rev. 1371, 1380 (1998) (the Note I referred to above):

[T]here were many persuasive legal arguments against recognizing a constitutional right to abortion. For instance, substantive due process arguably has no textual support in the Fourteenth Amendment Due Process Clause, and was at any rate severely discredited after the Lochner era.

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