The Row Over Rao

Like Paul, I am much relieved to see the news today that Neomi Rao’s nomination to the DC Circuit Court of Appeals has passed out of the Judiciary Committee, with Sen. Josh Hawley voting yes. I’ve been holding back in commenting on this story. (Also I’m traveling.) I guess I should, in the spirit of disclosure that journalists follow these days, tell my favorite Neomi Rao story, as I do know her a bit. Way back in the early aughts, I remember discussing the contested Florida 2000 election result, and quipping that in an election that close, even the Zoroastrians might reasonably claim to have been the margin of victory for George W. Bush. To which Neomi replied, “Well, actually I’m Zoroastrian!” By birth, I want to clarify: she converted to Judaism, which isn’t that great a leap from Zoroastrianism, which was an early monotheistic religion with definite Mosaic characteristics. But in any case I didn’t think there were really any live Zoroastrians walking among us.

I couldn’t be sure from the media coverage how intensely Sen. Hawley’s hesitations were, or whether he might be in part trying to send a message to the new White House counsel Pat Cippilone to keep his eye on the ball with all judicial nominations (I have no doubts in my mind about Cipillone’s acumen on this), or whether Hawley was trying to burnish his standing with social conservatives in Missouri. The stated reasons in the news accounts struck me as extremely misguided, even if your central concern is abortion. In fact I go further and say that the stated hesitation over Rao was mistaken especially if your central concern is abortion and the egregious Roe v. Wade decision.

I say this not from any direct or personal communication with Neomi—I never asked her about Roe largely because way back when it never occurred to me that she might be a judicial nominee some day—but from some general principles. I use what social scientists call “pattern recognition,” and in this case it means starting with the simple fact that Rao is one of the most formidable critics of the administrative state and the violence it does to the constitutional principle of the separation of powers. This, and not her views on abortion, are the real explanation for the left’s opposition to her appointment, because the administrative state is the partisan instrument of the Democratic Party. I think Hawley knows this (I know Tom Cotton does), and this leads me to my second data point in my pattern recognition.

While opposition to the administrative state doesn’t guarantee that a judge will also be averse to Roe, the strong probability is that it means she will. I once had a senior person in the Reagan Justice Department tell me how they finally figured out a good screen to detect if a potential nominee would be opposed to Roe (since you weren’t supposed to ask about it directly), and the proxy question was: what is your attitude about property rights? Remember that in the mid-1980s there were the first cases reviving a more robust protection for property rights under the 5th Amendment’s “Takings Clause,” and it turns out in practice that judges who have a robust view of property rights also vote against abortion (and vice versa).

Today I suggest that a potential judge’s view of the constitutional defects of the administrative state (which comprises property rights questions) is similarly a good proxy. This is why I am also puzzled and perhaps dismayed of the media reports that say Hawley is concerned that Rao is favorable to “substantive due process.” I understand what he means—substantive due process was the dubious workhorse for the Warren Court and for the invention of “rights” that were supposedly hidden all along in the “emanations and penumbras” of the 14th Amendment. But we should not throw out the baby with the bathwater. In one sentence (and this is a long story, requiring three or four lectures in my class on the Constitution when I cover this topic), it will likely require the revival of an older “substantive due process” (though following Clarence Thomas I’d call it “natural rights jurisprudence”), both to rein in the administrative state, and also to roll back Roe.

There is vigorous and serious debate on this question among conservatives. Just look up some of the back and forth between Randy Barnett and Ed Whelan on this topic from a few years ago, or read chapter 7 of an important recent book for some good background on both sides of this debate. Even if you disagree with Justice Thomas’s point of view on this, it is a bad reason to oppose Neomi Rao’s confirmation. I am relieved that cooler heads prevailed.

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