The Senate confirmed Neomi Rao to the D.C. Circuit Court on Wednesday. Rao—a law professor, former clerk to Supreme Court Justice Clarence Thomas, and founder of the Center for the Study of the Administrative State at George Mason University—will now fill the seat vacated by Supreme Court Justice Brett Kavanaugh.
What can Americans expect to see from Judge Rao? Reason has followed her impact on the regulatory scene.
Months into Donald Trump’s presidency, the Senate confirmed Rao as administrator of the Office for Regulatory Affairs. Prior to becoming regulatory czar, Rao had long criticized excessive power in the executive branch’s regulatory agencies.
Just a few months after her confirmation, the administration announced that it was removing an Obama-era rule that required companies to report pay based on gender, race, and ethnicity. Rao said the rule wasn’t effective at gathering “information about wage and employment discrimination.”
Rao received attention for a different kind of regulatory argument. She once warned that a ban against dwarf tossing, an activity involving a little person being thrown with his or her consent in exchange for money, set a poor precedent for its vague rules based on “dignity.” In a 2011 post for The Volokh Conspiracy, Rao cited Manuel Wackenheim, a French little person who made a living off the practice and opposed such bans. “Respect for intrinsic human dignity,” Rao wrote, “would favor individual choice.” We revisited Rao’s argument earlier this year when a similar prohibition was proposed in Washington state.
When an anonymous member of the Trump administration released a dramatic oped about “resisting” Trump within the White House, Rao’s name was briefly floated in speculations about the author.
Rao’s latest confirmation was not without controversy, or at least an attempt to cull controversy. Sen. Cory Booker (D–N.J.) confronted Rao on February over whether or not she’s ever employed an LGBT clerk. The biggest problem with this line of questioning is Rao has never been in a position to hire clerks, since she’s never been a judge before. Despite the attempt to grandstand at her expense, Rao replied that she took people “as they come, irrespective of their race, ethnicity, sexual orientation.”
A 2014 discussion between Rao and Reason‘s Damon Root is embedded below:
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