Yesterday, I wrote about how Sen. Josh Hawley is concerned with some of the academic writings of Neomi Rao, President Trump’s stellar nominee for the U.S. Court of Appeals, District of Columbia Circuit. Sen. Hawley worries that some of Rao’s work suggests she might be too 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.
As a general matter, what Hawley’s doing is commendable. He’s reading the work of a nominee to the nations’s second most important court and trying to discern from it her judicial and jurisprudential philosophy. He knows, I believe, that Neomi Rao is great on “the administrative state,” but wants to satisfy himself that there aren’t other areas where she might not be sound.
Whether the passages in Rao’s writing that bother the Senator should bother him, I don’t know. I have not read the articles in question. But the key to winning Sen. Hawley’s vote lies, I’m pretty sure, in persuading him that the writings in question shouldn’t bother him, or at least shouldn’t cause him to vote against confirming Rao.
But the editors of the Wall Street Journal would rather ridicule Sen. Hawley. In a snotty, condescending editorial, they accuse Hawley of grandstanding on the abortion issue. Going full ad hominem, they claim he has “a lean and hungry look.” (They also refer to him as “the young Mr. Hawley” and lecture him on Supreme Court history. Hawley is relatively young, but he’s also a former law clerk to Chief Justice Roberts, former attorney general of Missouri, a successful Supreme Court litigator, and a successful politician. I’m confident he could hold his own in a discussion of law and Supreme Court history/politics with the author of the WSJ journal, however old (or young) he or she is).
Josh Hawley isn’t Cassius, nor does he have it in for Neomi Rao, whose work on the administrative state I’m sure he greatly respects. He’s just a Senator performing his due diligence so that conservatives won’t get burned, as has happened so often in the past, by a judicial nominee who falls far short of the expectations of the conservative Senators who backed him.
I don’t believe Neomi Rao would be such a nominee, but it’s unfair to attack Sen. Hawley for doing all he can to satisfy himself that she wouldn’t be.
The WSJ editors go on to say that Hawley “may be inhaling rumors floated by those who favor nominating Amy Coney Barrett for the next Supreme Court opening and fear Ms. Rao as a potential rival.” It may (or may not) be true that folks with an ulterior motive have been “working” Sen. Hawley.
However, I am reliably informed that the Senator’s focus is on Rao’s writings, not rumors about her personal views on abortion. His vote will be driven by his reading of the nominee’s own words, not rumors from the camp of an alleged rival.
The Journal cites two quotations from Rao’s writings that are invoked to, and should somewhat, assuage Hawley’s concerns (both were included in my post from yesterday). It’s my understanding, however, that other portions of the 2011 law review article cited by the Journal concern Hawley.
Rao’s backers say the article in question should reassure, not bother Hawley. Fine. They, or the nominee herself, should explain to the Senator why his doubts are unfounded, or at least not reason enough to vote against confirmation.
The Wall Street Journal editorial isn’t just unhelpful, it’s offensive and possibly counterproductive. In response, Sen. Marco Rubio tweeted:
Rather than engage @HawleyMO arguments the @WSJopinion decides to take ad hominem cheap shots instead. The @WSJ produces great journalism & commentary. But its editorial board is increasingly attacks people instead of debating against ideas or policies.
That’s certainly true of this particular editorial.