Sen. Tom Cotton (R-Ark.) is privately raising questions about Neomi Rao, President Trump’s nominee for the U.S. Court of Appeals for the D.C. Circuit, and how she would potentially rule on cases involving abortion, according to people familiar with the matter.
Though he hasn’t voiced them publicly, Cotton shares concerns outlined by Sen. Josh Hawley (R-Mo.) earlier this week about Rao’s judicial philosophy, which Hawley detailed in a letter to Rao earlier Tuesday. Cotton declined to comment Tuesday evening when asked about Rao.
The concerns from two Republican senators with substantial legal credentials — Hawley is a former Supreme Court clerk, while Cotton graduated from Harvard Law School — represent another stumbling block for Rao, who was nominated in November to replace now-Justice Brett M. Kavanaugh on the influential D.C. circuit court.
In the letter to Rao Tuesday, Hawley said after looking through her record, he still has questions about her judicial philosophy.
“Understanding that lower court judges are bound by precedent, I will not vote to confirm nominees whom I believe will expand substantive due process precedents like Roe v. Wade and Casey v. Planned Parenthood of Southeast Pennsylvania,” Hawley wrote to Rao, citing two landmark Supreme Court decisions recognizing a constitutional right to abortion.
Hawley, a member of the Senate Judiciary Committee, is scheduled to meet one-on-one with Rao on Wednesday — one day before the committee plans a vote on her nomination. Republicans hold two more seats than Democrats on the committee, and the GOP also controls a 53-to-47 majority in the full chamber.
Yet Hawley’s objections to Rao, first reported by Axios on Sunday, have infuriated much of the Republican establishment that has enjoyed significant victories during the Trump presidency in getting more conservatives confirmed to the courts.
In a meeting on Monday, Senate Majority Leader Mitch McConnell (R-Ky.) upbraided Hawley, a freshman senator, over the Rao nomination, according to two people familiar with it who spoke on the condition of anonymity to discuss a private matter.
During the meeting, a displeased McConnell told the senator from Missouri that there were two sides in the Rao nomination battle — Republicans and allied groups, and Democrats. McConnell then pressed Hawley: Which side do you want to be on?
One of the people describing the meeting likened it to a “student being called to the principal’s office.” A Hawley spokeswoman did not immediately respond to a request for a comment on the meeting with McConnell, who has made confirming judges a top priority for the GOP-controlled Senate, and a spokesman for the majority leader declined to read out a private meeting.
A significant source of irritation among Republicans upset with Hawley is how the senator injected questions about Rao’s personal views into a discussion about whether she should be confirmed. Hawley told Axios that he has heard from at least one person “who said Rao personally told them she was pro-choice,” although Hawley acknowledged in the interview that he was not sure whether that was true.
Jonathan H. Adler, a law professor at Case Western Reserve University who supports Rao’s nomination, called concerns from conservatives “extremely odd.” Rao, he said, just withstood a “barrage of unfounded attacks” from liberal groups and “suddenly has to turn around and face innuendo and hearsay from the right.”
Adler said he does not know Rao’s personal views when it comes to abortion, but he emphasized that Rao understands in general that, as a judge, personal preferences and what the law requires might not always line up.
“She is an originalist and a constitutionalist,” said Adler, who has known and worked with Rao for two decades. “She has exactly the type of judicial philosophy Hawley says he wants.”
The caseload on the D.C. Circuit — often referred as the second-most-powerful court in the nation — is heavy on disputes involving federal agencies and executive power. Cases involving abortion are rare.
The pushback from allied groups on Hawley have been swift and severe. The Judicial Crisis Network, a deep-pocketed advocacy group that promotes conservative candidates to the bench, plans to begin a $500,000 paid media campaign on television, radio and online next week pressuring Hawley on Rao, who in the past clerked for Justice Clarence Thomas and currently serves as the administration’s regulatory czar.
“Sadly, barely a month after moving to Washington, Josh Hawley is already acting like Claire McCaskill when it comes to judges,” said Carrie Severino, the Judicial Crisis Network’s chief counsel and policy director, likening Hawley to the Democratic senator he ousted last year. “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.”
Asked Tuesday whether the group could escalate the ad buy, Severino said the group would monitor the situation.
Rao’s nomination ran into a separate obstacle earlier this month when Sen. Joni Ernst (R-Iowa) raised concerns about controversial writings from Rao in college about date-rape victims.
But Ernst, who disclosed earlier this year that she had been raped in college, met privately with Rao after her confirmation hearing, and the senator told The Washington Post at the time that she felt better about Rao’s nomination afterward. Rao also publicly apologized for her writings in a letter to the Senate Judiciary Committee.
Ann Marimow contributed to this report.