Legal commentator and law professor Jonathan H. Adler wrote that "Trump's selection of Rao suggests the administration is serious about regulatory reform, not merely reducing high-profile regulatory burdens."[2] Opposition to Rao came from groups such as the League of Conservation Voters (LCV), who said she has "led efforts to roll back fundamental environmental protections" and has "misuse[d] the regulatory review process for partisan political purposes."[12] The United States Senate confirmed Rao to the position on July 10, 2017.[13]
Rao's nomination attracted opposition due to articles that she wrote on race, sexual assault, feminism, and individuals with disabilities.[18]
In a 1994 article in the Yale Herald, Rao wrote: "Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink. And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice."[19]
Rao was criticized by disability rights activists such as Rebecca Cokley for a 2011 law review article[20] and a blog post where then-Law Professor Rao expressed opposition to bans on dwarf-tossing.[21]
A hearing on her nomination before the Senate Judiciary Committee was held on February 5, 2019. Rao was asked by several Senators about her college writings, some of which they viewed as sexual assault victim blaming. Rao responded, "A victim of a horrible crime is not to blame and the person who commits those crimes should be held responsible."[22]
Democrats expressed concern that rules Rao worked to repeal in her role as administrator of the White House Office of Information and Regulatory Affairs could face legal challenges and wind up before the D.C. Circuit Court of Appeals, which is considered the second most powerful appeals court. Rao said she would "look carefully at the standards for recusal, consult with her colleagues and follow the precedent and practices of the D.C. Circuit."[22] Republican Senator Josh Hawley questioned whether she was sufficiently socially conservative regarding abortion rights but ultimately voted for her confirmation.[23] On February 28, 2019, her nomination was reported out of committee by a 12–10 vote.[24] On March 12, 2019, the Senate invoked cloture on her nomination by a 53–46 vote.[25] On March 13, 2019, Rao was confirmed by a 53–46 vote.[26] She received her judicial commission on March 18, 2019.[27]
Notable opinions
In an October 11, 2019, opinion of a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, Rao was the dissenter in a 2–1 ruling to affirm a district court ruling supporting a congressional subpoena for President Trump's records from the accounting firm Mazars.[28] She wrote in her opinion that "allegations of illegal conduct against the president cannot be investigated by Congress except through impeachment."[29]
Rao participated in the May 2020 appeal of Judge Emmet G. Sullivan's actions appointing amicus curiae in response to the Department of Justice moving to dismiss charges in United States v. Flynn. The Appeals Court initially ordered Judge Sullivan to file a response regarding the appeal within 10 days.[30][31][32] On June 24, 2020, Rao wrote the 2–1 decision to dismiss the conviction of Flynn, joined by Judge Karen Henderson and with the dissent from Judge Robert Wilkins.[33] Observers were surprised because Henderson had expressed skepticism over the government's position during the hearing.[34] "I don't see why we don't observe regular order and allow him to rule," Henderson said.[34] Flynn's lawyer, Sidney Powell, argued there was no longer any case or controversy, and the trial judge must dismiss the case against Flynn, at the request of the Trump Justice Department. After vacating the Rao decision, the full court heard the case on August 11, with many of the judges expressing skepticism about upholding the ruling.[35][36] On August 31, 2020, the appeals court en banc ruled 8–2 in favor of denying the writ of mandamus, and not reassigning the case to a different district court judge, and remanded the case to Sullivan, with Judge Rao writing in dissent, joined by Henderson.[37][38]
In August 2023, Rao penned the decision in Frederick Douglass Foundation, Inc. v. DC, No. 21-7108 (D.C. Cir. 2023) overturning's Judge James Boasberg's dismissal of a lawsuit against the District of Columbia and holding that the First Amendment prohibits government discrimination on the basis of viewpoint and that the protection for freedom of speech applies not only to legislation, but also to enforcement of the laws. The Frederick Douglas Foundation had filed suit following the arrest of two of its members for defacing government property by writing on the sidewalk in chalk without first obtaining a permit from the City. The Foundation claimed viewpoint discrimination because the City had routinely ignored unpermitted chalk and paint by other protest groups but chose to enforce against the Frederick Douglas Foundation members when they wrote pro-life messages. Writing for the court, Judge Rao stated: “The government may not enforce the laws in a manner that picks winners and losers in public debates. It would undermine the First Amendment’s protections for free speech if the government could enact a content-neutral law and then discriminate against disfavored viewpoints under the cover of prosecutorial discretion. Neutral regulations may reasonably limit the time, place, and manner of speech, but such regulations cannot be enforced based on the content or viewpoint of speech.”[39][40]
Criticisms
Rao was the subject of a 2023 Georgetown Law Journal article called "Americana Administrative Law."[41] The author of that article argued that Rao's contributions to the administrative law field have been built on a declinist vision of Congress. The author suggests that Rao's "Americana Administrative Law" is a pitch for an aggrandized judiciary that can protect Congress from its own systemic decline.
Personal life
Rao is married to Alan Lefkowitz, a former law school classmate,[42] with whom she has two children.[43] Rao converted to Judaism upon marrying Lefkowitz.[44][45][46]
Selected scholarly works
Rao, Neomi (2008). "On the Use and Abuse of Dignity in Constitutional Law". Columbia Journal of European Law. 14 (2): 201–55.
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