This morning, the Senate Judiciary advanced the nomination of Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. The vote in favor of Rao was 12-10, along straight party lines.
Both Committee Republicans who had expressed doubts about Rao — Sens. Joni Ernst and Josh Hawley — voted in her favor. Ernst had indicated some time ago that her concern about Rao’s student writings on rape had been assuaged after meeting with the nominee.
Hawley’s concern was more serious. He sensed in her fairly recent academic writings more sympathy for “substantive due process” than a solid conservative should have. Substantive due process is a doctrine that can be used to invent rights not found in the language of the Constitution, such as the right to an abortion. Hawley had also heard that Rao was personally pro choice.
According to my sources, Rao failed to assuage this concern during an initial private meeting with Hawley. However, when they met a second time, shortly before today’s vote, Rao must have talked more expansively about the writings that concerned Sen. Hawley. In any event, Hawley says he came away from the discussion satisfied that, as he put it, Rao believes the meaning of the Constitution is “fixed.”
Barring the unexpected, Rao soon will be confirmed by the Senate. Judge Rao is a brilliant critic of the administrative state, so this is a case of “all’s well that ends well” — assuming that, as a judge, Rao doesn’t read the Constitution expansively.