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The Congressional Black Caucus Opposes The Nomination of Neomi Rao to D.C. Circuit

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Washington, March 7, 2019 | comments

WASHINGTON, D.C. –  Today, in a letter to Senate leadership, the Congressional Black Caucus (CBC) presented its strong opposition to the nomination of Neomi Rao, currently Director of the Office of Information and Regulatory Affairs in the Office of Management and Budget, to be a judge on the U.S. Court of Appeals for the District of Columbia Circuit.  In the letter, the CBC wrote of its concerns that Rao has consistently disparaged minorities, women and members of the LGBTQ community.  She has also sought to dismantle the many federal rules and regulations that protect consumers, the environment and our economy.

“Neomi Rao has devoted her career to restricting protections for women, minorities, and members of the LGBTQ community,” said Congresswoman Karen Bass (D-CA), Chair of the Congressional Black Caucus. “Any nominee who actively worked to dismantle fundamental protections for African Americans in not qualified to serve on the U.S. Court of Appeals for the District of Columbia Circuit.”

“Neomi Rao’s views are so out of the mainstream that she had to issue an apology for at least some of them to the Senate Judiciary Committee,” Congresswoman Eleanor Holmes Norton (D-DC), Chair of the CBC Judicial Nominations Task Force, said.  “Rao’s apology focused on her disturbing views regarding victims of rape expressed during college, but our opposition to her extends well beyond these remarks.  Throughout her career in government and in academia, Rao has shown special disdain for the rights of minorities, women, members of the LGBTQ community and the disabled.  Neomi Rao is does not belong on any court, and certainly not on the one that often leads to nomination to the U.S. Supreme Court.”

The CBC’s full letter follows:

March [  ], 2019

The Honorable Mitch McConnell                               The Honorable Charles Schumer

Majority Leader                                                          Minority Leader

United States Senate                                                   United States Senate

Washington, DC 20510                                              Washington, DC 20510

Dear Leader McConnell and Leader Schumer:

            We write to express our grave concerns about the pending nomination of Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit.  During her career and in her writings, Ms. Rao has repeatedly disparaged minorities, women and members of the LGBTQ community, and has sought to dismantle many of the important federal rules and regulations that protect consumers, the environment and our economy.  Ms. Rao’s views are so extreme that she has had to recently write an apology letter for them, saying they were “insensitiv[e],” the work of “little knowledge or experience,” and from a “sheltered” “college student.”  Unfortunately, this is much too little and too late in light of the spectrum of her career.  Her limited apology referred only to her disturbing remarks concerning rape; she did not apologize for her disparagement of people of color and the LGBTQ community.  The apology for some of her college writings was necessary, but a bare minimum, and is of little value because Ms. Rao brought her radical, hate-filled philosophy into her professional career, including as the head of the Office of Information and Regulatory Affairs (OIRA), where she now serves.  To be clear, Ms. Rao’s disqualifications are not isolated to her writings from college, and they mean that she should never be allowed to serve on the federal bench.  She has continued to fight for dismantling important protections for minorities, women and the LGBTQ community as central points of her career.  For these and other reasons, we strongly urge the Senate to reject her nomination.

            Ms. Rao has consistently spoken disparagingly of the rights and contributions of minorities, and there is no evidence that she has changed or disavowed views that she wrote about in college.  These views, which alone are sufficient to show that she does not deserve confirmation, evidence no understanding of discrimination in our country.  For example, as a college student, Ms. Rao criticized Yale University’s policies to diversify its applicant pool, writing that minorities received “special treatment” because of Yale’s “ideology of diversity” and that “[i]f non-minority students at Yale have no particular voice… why should each collective of ethnic students receive a professional, faculty representative?”  In another article, Ms. Rao wrote of Yale’s “dedicat[ion]… to a relatively firm meritocracy, which drops its standards only for a few minorities, some legacies and a football player here or there” (emphasis added).  These are some of the numerous disturbing comments for which Ms. Rao has yet to apologize.  Such statements are tone deaf to the importance of diversity in higher education, which the U.S. Supreme Court has sustained.  In yet another article about her college experience, Rao mocked the “multicultural police” who allegedly advocate for “demonstrating for more Asian-American deans or throwing myself on the ground, covered with ketchup, to protest the mistreatment of Haitian refugees.”  As we note below, these disturbing ideas did not end with her writings in college – they have continued well into her current career.

In yet another Yale article, Ms. Rao lamented “[t]he recent hysteria, activism and coalition-forming that occurred in relation to the Chicano Dean….  Myths of sexual and racial oppression propogate (sic) themselves, create hysteria and finally lead to the formation of some whining new group.”  In praising a right-wing commentator, Rao called affirmative action “the anointed dragon of liberal excess” that was subject to be “slay[ed]”.

            Ms. Rao’s disdain for African Americans continues to yet another group, the LGBTQ community, illustrating a troubling pattern of animus toward non-majority people unbecoming for a candidate for a federal judgeship.  It is stunning that a nominee for a court, known for members selected for the Supreme Court, would have penned the following, even while in college:

[T]he multiculturalists are not simply after political reform.  Underneath their touchy-feely talk of tolerance, they seek to undermine American culture.  They argue that culture, society and politics have been defined – and presumably defiled – by white, male heterosexuals hostile to their way of life.  For example, homosexuals want to redefine marriage and parenthood; feminists in women’s studies programs want to replace so-called male rationality with more sensitive response common to womyn (sic).  It may be kinder and gentler, but can you build a bridge with it?

In another piece, Ms. Rao wrote, “Trendy political movements have only recently added sexuality to the standard checklist of traits requiring tolerance…  Because homosexuality, unlike gender and race, concerns a socially unacceptable activity, many gays have responded to the demands of normalcy in radical ways.” (emphasis in original).  She also criticized the LGBTQ equality movement and its “confrontational stance to traditional society,” by writing that “many gays… want not only equal rights, but they struggle more fundamentally to alter culture and society.”  How can someone nominated for the D.C. Circuit be expected to be fair to non-majority groups with that mindset?  Again, however, Ms. Rao has not repudiated these beliefs, and, even worse, has actively sought during her career to develop these extremist, hateful views into public policy while serving as the head of OIRA.  Rao finalized Department of Health and Human Services rules to allow medical providers to use an exceptionally broad “religious objection” justification to refuse treating a patient.  This could be used to deny treatment to LGBTQ individuals or their children, or for denial of critical contraceptive coverage.

            Ms. Rao also has been dedicated to destroying and mocking the social safety net that is important to society, and especially to African Americans, and has simultaneously mocked people with disabilities.  In a book review article she penned in college, Ms. Rao started her piece by writing, “What is bourgeois meritocracy?  Probably what William A. Henry III calls elitism.  In this age of affirmative action, women’s rights, special rights for the handicapped and welfare for the indigent and lazy, elitism is a forgotten and embarrassing concept.”  These views, again, did not stop with her graduation from college.  In criticizing Chief Justice Robert’s reading of the Affordable Care Act in King v. Burwell, where he ensured that the law was read as Congress intended instead of anachronistically and in a way that would destroy the entire health care system, Ms. Rao wrote that “[t]he talking points trumped the law.”  In the same article, she criticized now-former Justice Kennedy for allowing for long-recognized disparate impact analyses in interpreting the Fair Housing Act, saying that “The talking points won again.”  She also wrote, “The judiciary has a duty to ‘say what the law is,’ not what some lawmakers hoped it would be.”  Actually, law should be what lawmakers intended it to be.  Ms. Rao shows little regard for law designed to protect groups that experience discrimination.

Ms. Rao has written several times in support of the deregulation of the deplorable practice of so-called “dwarf tossing.”  Her focus to allow this practice cannot be attributed to a naïve college student – these writings are from later in her academic and legal career.  “These laws do not purport to maximize individual freedom,” she wrote, “but instead regulate how individuals must behave in order to maintain dignity (and in the case of criminal prohibitions, stay out of jail).”  In the same piece, Ms. Rao somehow connected “dwarf tossing” prohibitions to the elements provided in welfare, writing,

This defense, not just of welfare policy, but welfare rights, turns on many of the same arguments presented for negative liberty, i.e. that such welfare is an essential prerequisite for respecting human agency and autonomy, and as a consequence human dignity….  Nonetheless… [i]f a certain standard of living is essential to maintaining dignity, this suggests that dignity is not inherent in the individual, but rather depends on external factors.  A certain level of material well-being may be one of the ­conditions for exercising dignity, but it is not dignity itself.  (emphasis in original).

With this, we simply cannot agree.  So-called “dwarf tossing” is a hate crime that should be criminalized; providing welfare to help alleviate poverty is necessary for subsistence.

            It is not hate crimes alone that Ms. Rao seeks to deregulate, however.  There is also no reason to believe that Ms. Rao would uphold women’s rights.  She has gone so far as to hold survivors at least partially responsible for date rape.  “[A] good way to avoid a potential date rape is to stay reasonably sober.”  She went on to say, “Implying that a drunk woman has no control of her actions, but that a drunk man does, strips women of all moral responsibility.”  Rape is rape, and an individual who cannot see that does not deserve a seat on any court, much less the D.C. Circuit.  While we appreciate that in her recent letter to the Judiciary Committee, Ms. Rao wrote that she has now seen the light on women’s equality, her record continues to show otherwise.  It is not surprising that during her time at OIRA, Rao helped annihilate Title IX protections for the survivors of campus sexual assault and sexual harassment.  These regulations had imputed responsibility on the school – which receives federal funds – to ensure a safe learning environment.  She also blocked guidance to address sexual harassment in the workplace.  There is no reason to believe that she would support the rights of women if she is confirmed to the court.

            Ms. Rao has had to write an apology for her writings in college about rape to continue to be considered for this seat.  However, she has devoted her career to seeking to belittle protections for women, minorities and members of the LGBTQ community.  Ms. Rao is the founder of the Center for the Study of the Administrative State, an organization funded by the Koch brothers.  She has spent her career tearing down the protections upon which so many Americans, and especially African Americans, rely.  These concerns are of paramount importance to the CBC and the constituents we represent and enjoy support from the majority of the American people.  We urgently call for you to reject the nomination of Neomi Rao to the D.C. Circuit.






Karen Bass                                                      Eleanor Holmes Norton

Chair, Congressional Black Caucus               Chair, CBC Judicial Nominations Working Group

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