Federal Courts and Nominations

The Senate Must Not Give Neomi Rao a Diversity Pass Given Her Appalling Track Record on Race

In early February, I joined several South Asian American women as we stood in silent protest during Neomi Jehangir Rao’s hearing before the Senate Judiciary Committee. We represented the 70-plus South Asian women lawyers, law professors and survivor advocates who asked senators to reject Rao’s appointment to fill Justice Brett Kavanaugh’s old seat on the D.C. Circuit Court of Appeals.

Some people found it surprising that we would oppose Rao, especially since she could be the first South Asian American woman to become a federal appellate judge. The Trump administration understands those optics. President Trump even chose to announce Rao’s nomination at last year’s White House Diwali function, flanked by Indian American appointees and the traditional diya lamp. But the values and principles of public servants, and their commitment to fundamental principles of equality and justice, should matter more than fake diversity and superficial representation. Rao might check off a diversity box on the surface, but her writings in college, her academic scholarship and her policy decisions as the current chief of the federal government’s regulatory office show that she will not be an open-minded, fair and impartial arbiter of justice.

Throughout her career, Rao has diminished the rights of vulnerable communities and minimized the role of government policies to rectify and prevent discrimination. If confirmed, Rao would rule against affirmative action programs and dismantle policies that seek to remedy housing and workplace discrimination. Rao would rule against public protections that preserve the environment or safeguard the rights of sexual assault survivors, LGBTQ community members and people with disabilities. This is why a diverse array of organizations, including End Rape on CampusLambda Legal, the Little People of America and the Constitutional Accountability Center, opposes Rao’s confirmation.

Rao has consistently expressed disdain for the assertion of collective rights by people experiencing the effects of historic and ongoing discrimination. In college, Rao discredited her peers who struggled to bring about diversity in curricula and faculty as the “multicultural police.” In a 1995 review of a book that defended elitism, Rao praised the author’s derision of group rights, and applauded his “rare show of wisdom” when he wrote that we should “stop thinking of blacks – and having them think of themselves – as a category.” While Rao has tried to distance herself from her disturbing college writings on sexual assault– and only after tremendous pressure by women’s rights advocates and questioning by senators – she has not similarly disavowed her writings on race.

The disregard that Rao expressed for group rights and identity-based organizations at Yale extended to her scholarly analyses of anti-discrimination policies and affirmative action programs. In a 2009 law review article evaluating Justice Ruth Bader Ginsberg’s equality jurisprudence, Rao wrote that the use of race in affirmative action programs “…perversely reinforces the historic associations between race and disadvantage.” At a time when affirmative action cases are frequently being brought before courts, it is already clear where Rao stands. Additionally, in 2015, Rao criticized the Supreme Court for its recognition of disparate impact claims in preventing housing discrimination. She belittled the court’s decision by saying that “the talking points had won again.” That is how Rao viewed a decision which sought to strengthen the Fair Housing Act’s mandate to counter housing segregation and provide relief for people facing discrimination in housing or renting.

Even worse, Rao has brought these alarming viewpoints into her current leadership role at the Office of Information and Regulatory Affairs. As the Trump Administration’s “deregulatory czar”, Rao has rolled back public protections for vulnerable communities including women, survivors of sexual violence, and LGBTQ people – the same groups that she derided in college. In 2017, Rao gutted an equal pay initiative that required employers to collect data on wages by sex, race, and ethnicity, claiming that it was “unnecessarily burdensome.” Her agency was also responsible for rescinding disparate impact protections in housing discrimination, and is in the process of finalizing a rule that would allow health care providers to deny medical care to LGBTQ patients, women seeking reproductive health care, and others based on the provider’s “conscientious objections.”

During her confirmation hearing, Rao was asked about many of these decisions but she failed to clarify her views. Instead, Rao provided stock and shallow answers about how to address racial discrimination. She hearkened to Martin Luther King Jr.’s philosophy at one point, and identified exposure to diverse groups, tolerance and positivity in the face of discrimination as strategies to advance racial equality. But what about the law? Rao did not expand on her understanding of the law’s role in either dismantling or deepening structural racism. She even refused to answer whether Brown v. Board of Education, universally agreed to be a landmark case in shaping racial jurisprudence, was correctly decided. Given these responses, her supposed adherence to King’s philosophy holds little weight.

The Senate has blocked other candidates with similar track records on race. Last year, senators on both sides of the aisle expressed concerns with 9th Circuit Court nominee Ryan Bounds after his own divisive writings on race from college were discovered. Bounds’ nomination was quickly withdrawn by the White House. A few months later, Sen. Tim Scott (R-S.C.) warned that “candidates with questionable track records on race” should not be brought before the full Senate. Clearly, Neomi Rao falls into that category, and senators must not give her a diversity pass to hold a lifetime seat on the second-most powerful court in the nation.