The Washington Post reports that Sen. Tom Cotton is privately raising questions about Neomi Rao, President Trump’s nominee to serve on the U.S. Court of Appeals for the District of Columbia. Says the Post, “though he hasn’t voiced them publicly, Cotton shares concerns outlined by Sen. Josh Hawley earlier this week about Rao’s judicial philosophy, which Hawley detailed in a letter to Rao earlier Tuesday.”
Sen. Cotton is a Harvard law grad. He clerked for a federal appeals court judge and then practiced law with a top law firm. He knows what he’s talking about.
Sen. Hawley probably appreciates Sen. Cotton’s backing. He has come under intense and unfair pressure to ignore his doubts about Rao and toe the party line.
The Wall Street Journal attacked him in a condescending editorial. The Judicial Crisis Network plans to pressure him through an ad buy in Missouri. Its chief counsel claims that Hawley “is already acting like Claire McCaskill when it comes to judges” — as if scrutinizing a nominee’s writings to see if she has liberal activist instincts is the same thing as opposing virtually every conservative nominee for not being a liberal activist.
Finally, according to the Post:
Senate Majority Leader Mitch McConnell upbraided Hawley, a freshman senator, over the Rao nomination, according to two people familiar with it who spoke on the condition of anonymity to discuss a private matter. During the meeting, a displeased McConnell told the senator from Missouri that there were two sides in the Rao nomination battle — Republicans and allied groups, and Democrats. McConnell then pressed Hawley: Which side do you want to be on?
One of the people describing the meeting likened it to a “student being called to the principal’s office.”
The thing is, McConnell and Hawley have somewhat different interests. McConnell’s interest is simply to confirm every nominee Trump sends him. He’s basically a traffic cop, and bless him for being an effective one.
Hawley’s interest, and Cotton’s, is different. They want reliably conservative, non-activist judges. Thus, they want to be as confident as possible that nominees won’t at times indulge in liberal activism, for example, by inventing new constitutional rights in the name of “dignity” and “autonomy.”
Hawley says he has found indications in Rao’s academic writing that she might have such activist tendencies. He believes that at least one of her articles places too much weight on “dignity” and “autonomy.”
Hawley is doing the right thing by trying to satisfy himself that this isn’t a problem — or at least not a dealbreaker. Conservatives have been burned too many times by the nominees of Republican presidents not to do their due diligence every time.
The Post says that Hawley met with Rao today to discuss her writings. It was the second such meeting between the two. The first apparently could have gone better.
I hope Rao assuaged Hawley’s concerns. There’s much to like about this nominee. Either way, however, Hawley should vote his conscience.