President TrumpDonald John TrumpDemocrats, advocates seethe over Florida voting rights ruling Russian jets identified in Trump campaign ad calling for support for the troops Democratic Senate candidate ‘hesitant’ to get COVID-19 vaccine if approved this year MORE’s Supreme Court shortlist released last week included a mix of controversial names and conservative favorites, but his decision to leave off one particular judge was just as notable as any of the potential nominees.
Judge Neomi Rao has been one the president’s most reliable allies on the federal bench since the Senate confirmed her in March 2019 on a party-line vote. During her time on the D.C. Circuit Court of Appeals — considered the second most important court in the country and a stepping stone for the Supreme Court — Rao has ruled in favor of former national security adviser Michael Flynn, defended Trump against subpoenas for his personal records and approved the administration’s effort to resume federal executions for the first time in 17 years.
But during her rocky confirmation process she faced tough questions from social conservatives about her stance on abortion, an episode that likely led to her omission from last week’s shortlist, according to a source close to the administration.
Rao could not be reached for comment.
Her exclusion from the list has drawn criticism from other conservatives, particularly staunch free market supporters, who went to bat for her last year during the confirmation process. It also highlights how even traditional conservative judges may be facing increased scrutiny for their stance on social issues like abortion after a Supreme Court term that featured a handful of surprising liberal victories despite a solid 5-4 conservative majority on the bench.
Earlier this summer, the court disappointed many conservatives with rulings that upheld Obama-era deportation protections, solidified workplace rights for LGBT employees and struck down a restrictive Louisiana abortion law. In each of the decisions, the four liberal justices were joined by at least one of their conservative colleagues.
Trump responded to the defeats by vowing to release a shortlist of people he would consider for the high court if reelected to a second term, mimicking a move he employed during the 2016 campaign to help win over religious conservatives.
“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” Trump tweeted in June. “We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”
Many court watchers expected Rao to be on the most recent list given how she has sided with the administration and issued bold opinions during her tenure.
But people familiar with the administration’s thinking indicated that Rao’s views on abortion were likely a major factor in why she was not among the 20 names on the list.
“The conservative movement is going to be watching her D.C. Circuit decisions closely on this issue,” one source close to the administration said.
Rao has strong conservative bona fides. After graduating from the University of Chicago Law School, she clerked for Justice Clarence ThomasClarence ThomasThe Hill’s Morning Report – Sponsored by The Air Line Pilots Association – Trump, Biden renew push for Latino support Trump’s Supreme Court list reveals influence of Clarence Thomas Trump unveils Supreme Court list, includes Cruz and Cotton MORE, worked in the George W. Bush White House and founded the Center for Study of the Administrative State at George Mason University’s Antonin Scalia Law School before joining the White House after Trump took office.
But when the president tapped her in 2019 to fill the D.C. Circuit seat left open by Brett KavanaughBrett Michael KavanaughCruz says he wouldn’t accept Supreme Court nomination Trump’s Supreme Court list reveals influence of Clarence Thomas The Hill’s Morning Report – Sponsored by National Industries for the Blind – Trump seeks to flip ‘Rage’ narrative; Dems block COVID-19 bill MORE’s elevation to the Supreme Court, she immediately ran into trouble with the Senate.
Democrats raised objections to some of her past comments about date rape that critics described as victim-blaming, and Sen. Joni ErnstJoni Kay ErnstSenate Republicans scramble to contain fallout from Woodward bombshell The Hill’s Morning Report – Sponsored by National Industries for the Blind – VP nominee Harris, VP Pence crisscross Wisconsin today GOP uses debunked theory to downplay COVID-19 death toll MORE (R-Iowa) questioned Rao about those comments at her confirmation hearing, saying they gave the senator serious reservations about the nomination.
Sen. Josh HawleyJoshua (Josh) David HawleyHillicon Valley: Oracle confirms deal with TikTok to be ‘trusted technology provider’ | QAnon spreads across globe, shadowing COVID-19 | VA hit by data breach impacting 46,000 veterans Hawley calls on CFIUS to reject Oracle-TikTok deal Health care in the crosshairs with new Trump Supreme Court list MORE (R-Mo.), one of the names on Trump’s recent shortlist, raised questions about Rao’s stance on abortion in unusually sharp critiques from a GOP senator.
Hawley cited her past academic legal writing that indicated she might believe in a doctrine that views abortion rights as compatible with the Constitution.
In a 2011 law review article, she wrote that “American constitutional law has a long history of treating individual choice and autonomy as an integral and preeminent component of human worth.”
Hawley eventually voted for her confirmation — as did Ernst — after meeting with her to discuss his concerns. But he also took a parting shot at right-wing legal activists whom he felt were taking social conservatives for granted.
“I am committed to thoroughly vetting every judicial nominee who comes before the Senate Judiciary Committee, especially appellate nominees,” Hawley said in a statement at the time. “That means asking nominees tough questions about how they will interpret the Constitution, how they think about precedent, and how they view the role of a judge. That’s my job as a Senator. I won’t apologize for doing it. There are some in this town who say ‘trust us,’ but past experience has shown that conservatives have been burned by that approach.”
In June, after the Supreme Court ruled in a 6-3 opinion authored by Justice Neil GorsuchNeil GorsuchCruz says he wouldn’t accept Supreme Court nomination Trump’s Supreme Court list reveals influence of Clarence Thomas Tom Cotton after Trump names him potential Supreme Court nominee: ‘It’s time for Roe v. Wade to go’ MORE, Trump’s first appointee to the court, that LGBT workers are protected by existing workplace discrimination laws, Hawley portrayed the decision as a betrayal to the GOP’s socially conservative wing that had helped it secure a Supreme Court majority for the first time in years.
“It represents the end of the conservative legal movement, or the conservative legal project, as we know it,” Hawley said of the decision on the Senate floor. “If we’ve been fighting for originalism and textualism and this is the result of that, then I have to say that we haven’t been fighting for very much.”
Hawley’s advocacy has opened a rift on the right, with some of the conservative legal movement’s leaders criticizing his stance on judicial nominees. When the Missouri senator publicly criticized Rao in February 2019, Carrie Severino, president of the Judicial Crisis Network, blasted him in a statement to Axios.
“Instead of supporting President Trump’s top judicial nominee, he is spreading the very same kind of rumors and innuendo and character assassination that Republican leaders fought during Justice Kavanaugh’s confirmation,” Severino said. “Hawley could be working to confirm her and other extraordinary nominees, but it seems he’d rather be making headlines.”
Severino declined to comment for this story.
The fact that Trump included Hawley on his shortlist but left out Rao did not go unnoticed by her supporters, as well as multiple conservatives close to the administration who said they viewed it as a slight against the judge.
Ashley Baker, policy director for the conservative group Committee for Justice, criticized the decision to leave Rao off the list and include Hawley. Baker told The Hill that she believes the senator’s proposed benchmark on abortion for conservative judges will not be an effective metric for evaluating nominees.
“Senator Hawley has proposed a sort of ‘litmus test’ for being on the record as pro-life,” she said in an email. “While there are debatably some larger problems with this form of results-oriented jurisprudence, the fundamental flaw with this proposal is that the test wouldn’t work.”
Baker went on to say that Hawley’s approach would still have led to confirmation of former Justices Anthony Kennedy, Sandra Day O’Connor and David Souter, who were all appointed by Republican presidents but ended up becoming swing votes on many social issues.
While Hawley’s inclusion on the list may have irked some on the right, he quickly disavowed any interest in serving on the bench.
“I appreciate the President’s confidence in listing me as a potential Supreme Court nominee,” Hawley tweeted last week. “But as I told the President, Missourians elected me to fight for them in the Senate, and I have no interest in the high court. I look forward to confirming constitutional conservatives.”
Brett Samuels contributed.