Mar 13 2019
Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today released the following statement on the nomination of Neomi Rao to the D.C. Circuit Court:
“The D.C. Circuit is considered by many to be the most powerful appellate court in the country. This is true in large part because the D.C. Circuit hears challenges to many actions taken by the federal government, including challenges to the adoption or repeal of federal regulations.
I believe it is particularly relevant that Ms. Rao has a record of working to dismantle key regulations that ensure the air we breathe is safe, that address climate change, and that protect American workers and consumers.
Ms. Rao has a troubling and aggressive record as the head of the Office of Information and Regulatory Affairs. She has led efforts to weaken fuel economy, or CAFE standards, which I authored with Senator Olympia Snowe and which has been the law since 2007. Before the Administration proposed freezing these standards, we were set to achieve a fuel economy standard of 54 miles per gallon (MPG) by 2025.
Ms. Rao has also led efforts to repeal the Clean Power Plan. This repeal has been estimated to result in up to 1,400 premature deaths annually by 2030, due to an increase in particulate matter from emissions that are linked to heart and lung disease. Further, the repeal of the Clean Power Plan is expected to cause up to 48,000 new cases of serious asthma and 15,000 new cases of upper respiratory problems every year.
Ms. Rao was also instrumental in reversing the Equal Employment Opportunity Commission’s actions to address pay discrimination. Specifically, Ms. Rao eliminated reporting requirements proposed by the EEOC that were designed to identify wage discrimination on the basis of gender or race. Just last week, a federal judge ruled that Ms. Rao’s action was “arbitrary and capricious” – which is significant because the arbitrary and capricious standard is high and hard to prove. The judge concluded that Ms. Rao’s rationale for her decision was “unsupported by any analysis.”
Ms. Rao also approved the recently finalized Title X “gag rule” on family planning. Under this rule, any organization that merely refers patients to an abortion provider is ineligible for Title X funding. This will result in many women going without lifesaving cancer screenings, and it will reduce access to contraception.
I asked Ms. Rao about her work dismantling these key regulations. In response to me she downplayed her responsibility, saying that her role was simply to “coordinate regulatory policy.”
But when answering the questions of Republican Senators, Ms. Rao expressed pride in her work. Asked specifically about her “primary contribution to pushing forward with deregulation,” Ms. Rao responded: “There are a lot of regulations on the books that don’t have the effects that were intended. . . . And, you know, we’re looking to pull back the things that are no longer working.”
However, to take just one example, the CAFÉ standards have been working – they have already saved $65 billion in fuel costs for American families and prevented the emission of 250 million metric tons of carbon dioxide. Unfortunately, her words don’t match the actual actions under her leadership.
Moreover, I asked Ms. Rao if she would commit to recusing herself from any case involving regulations that she worked on while serving in her current position. She refused to make such a commitment.
This is of great concern as other nominees have understood the appearance of bias and unequivocally made such commitments.
For example, President Trump's first nominee to the D.C. Circuit, Greg Katsas, said: “Under the governing statute, I would have to recuse myself from any case in which, while in the Executive Branch, I had participated as a counsel or advisor or expressed an opinion on the merits.”
In addition to her record of dismantling key regulations that protect the environment, consumers, and worker health and safety, Ms. Rao has taken a number of extremely controversial positions in articles she has written. At Ms. Rao’s hearing before the Judiciary Committee, I noted that while the writings that received the most attention are from when she was in college, several are relevant to the work she has led in the Trump Administration and to cases she could hear if confirmed.
For instance, in addressing the issue of date rape, Ms. Rao wrote that if a woman “drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”
While she has since written a letter expressing that she “lacked the perspective of how [her articles] might be perceived by others,” her record demonstrates that these views seem to persist to today. Specifically, Ms. Rao has been personally involved in repealing protections for survivors of campus sexual violence. Ms. Rao has acknowledged that her office approved controversial new rules on campus sexual assault under Title IX. Those rules would discourage survivors from reporting their assaults, in part because survivors would be subjected to cross-examination by their attacker’s chosen representative. It is safe to assume this change in the guidance will be challenged in the D.C. Circuit.
In her writings, Ms. Rao also questioned the validity of climate change, criticizing certain student groups for promoting “a dangerous orthodoxy that includes the unquestioning acceptance of controversial theories like the greenhouse effect,” which she argued “have come under serious scientific attack.”
Again, at the hearing, she tried to mitigate these writings saying, it was her “understanding . . . that human activity does contribute to climate change.”
However, during her tenure in the Trump Administration, she has led the effort to overturn the very regulations that combat human contributions to climate change. For example, and as I noted previously, she has overseen the Administration’s efforts to rescind the Clean Power Plan and weaken fuel economy standards.
I am also concerned about Ms. Rao’s professional experience. She is not admitted to practice before the D.C. Circuit, the court to which she has been nominated. She has never served as a judge. And, she has never even tried a case.
In response to a question on the Judiciary Committee’s Questionnaire about the ten most significant litigated matters that she personally handled, Ms. Rao listed only three. And two of these were arbitration cases that she worked on while serving as an attorney in the United Kingdom.
Ms. Rao’s lack of litigation experience therefore raises an important question as to her qualifications for this seat, and suggests that she was nominated not because of her appellate credentials, but because of her anti-regulatory record.
I also have questions about commitments Ms. Rao appears to have made on reproductive rights. I don’t believe we should have litmus tests for judicial nominees, and I know many on the other side agree with me on that. Just in 2017, Senator McConnell said, “I don’t think there should be a litmus test on judges no matter who the president is.”
Yet, on a recent radio program, Senator Hawley said that before he could vote for Ms. Rao, he wanted to “make sure that Neomi Rao is pro-life. It’s as simple as that.”
Subsequently, Ms. Rao met with Senator Hawley in private and presumably assured him that she would be anti-choice. According to Senator Hawley, Ms. Rao went further and “emphasized that substantive due process finds no textual support in the Constitution.”
Rejecting the entire concept of substantive due process means that Ms. Rao not only believes Roe v. Wade was incorrectly decided, but also other landmark cases – like Griswold v. Connecticut, which held that states cannot restrict the use of contraception
I am also concerned about her written responses to our questions for the record. She gave several responses that were misleading at best.
Ms. Rao wrote that the center she founded at George Mason University “did not receive any money from the Koch Foundation.” She added that the center “did not receive money from an anonymous donor.”
However, according to public records, in 2016, George Mason University received $10 million from the Koch Foundation and $20 million from an anonymous donor. The grant agreements executing these donations clearly state that support for Ms. Rao’s center was one of the conditions of these multi-million dollar gifts and “Ms. Rao’s center benefited from those contributions.”
Additionally, Senator Whitehouse asked Ms. Rao if she had any contact with the Federalist Society when considering potential faculty. Ms. Rao responded “no” but clarified the Federalist Society occasionally made recommendations through its faculty division.
What Ms. Rao failed to mention is that she herself was a member of the faculty division of the Federalist Society for her entire time in academia. Given this role, I don't understand why she would claim that she had no contact with the Federalist Society when considering faculty candidates.
In closing, Mr. President, my concerns about Ms. Rao — from her writings to her work dismantling regulations to her lack of candor with the Committee — are simply too great for me to support her nomination to the D.C. Circuit. I will vote against her confirmation, and I urge my colleagues to do the same.”