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Justice Thomas working behind the scenes to boost Trump’s court nominee

Neomi Rao, President Trump's nominee to be a judge on the U.S. Court of Appeals for the D.C. Circuit, testifies at a Senate Judiciary confirmation hearing in February. (Zach Gibson/Getty Images)

Supreme Court Justice Clarence Thomas is working behind the scenes to boost the prospects of Neomi Rao, one of his former law clerks, to serve on a powerful federal appeals court in Washington — speaking privately with at least two Republican senators as she faces a contentious confirmation fight. 

Sen. Josh Hawley (Mo.) who publicly questioned how Rao would rule on issues such as abortion before supporting her in a key vote Thursday, disclosed this week that he had called Thomas. The justice has also phoned Sen. Tim Scott (S.C.), a sometimes deciding voice on controversial nominees.

“He called me and wanted just to share with me his positive experience and how smart she was,” Scott said in an interview Thursday, recalling the conversation he had with Thomas a couple of weeks ago. 

Hawley is a member of the Senate Judiciary Committee, which voted 12 to 10 on Thursday to recommend Rao to the full Senate. Scott is not on the panel.

Scott stressed that he was undecided on Rao’s nomination to the U.S. Court of Appeals for the D.C. Circuit, saying he would continue to study her record. President Trump nominated Rao in November to replace Brett M. Kavanaugh, now a Supreme Court justice.

“Her meeting with me was okay. Didn’t answer all my questions,” Scott said. “We’re moving in the right direction, but I’m going to have conversations with Hawley and other senators who’ve expressed concerns, compare notes, as well.”

Thomas, famously taciturn during oral arguments at the high court, has previously worked in private in support of other judicial nominees. In the 1990s, he intervened or offered to help several stalled African American judicial candidates, including those nominated by Democrats, according to several black judges interviewed by The Washington Post in 2004.

Thomas declined to comment through a court spokeswoman.

Hawley and Sen. Tom Cotton (R-Ark.) expressed concern this week about Rao’s judicial philosophy and specifically whether she would expand abortion rights. But Hawley joined other Republicans on the Judiciary Committee in backing her nomination after meeting with Rao on Wednesday to discuss her writings, reviewing her record and talking to her former bosses, including Thomas.

Another committee Republican, Sen. Joni Ernst (Iowa), also supported Rao but with some hesitation, she said, because of controversial columns Rao wrote as a college student about date rape. Ernst disclosed earlier this year that she was raped in college and said she remains concerned about the message Rao’s writing sends to young women.

Republicans hold a 53-to-47 Senate majority, and four or more GOP defections would sink the nomination. 

Two GOP senators said to express concern over Trump’s appeals court pick

Rao spent 10 years in academia before joining the Trump administration in 2017 as the White House’s regulatory affairs administrator.

The resistance to Trump’s nominee from members of the president’s own party prompted swift pushback this week and anger from conservative circles. The GOP establishment has celebrated the president’s success in installing a record number of appeals court judges nationwide in his first two years in office. 

The Wall Street Journal criticized Hawley in two editorials this week, and the Judicial Crisis Network, a conservative advocacy group, said it would begin a $500,000 media campaign to pressure Hawley to support Rao.

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Hawley, a former Missouri attorney general, graduated from Yale Law School and served as a Supreme Court clerk for Chief Justice John G. Roberts Jr. Rao has clerked for Thomas and has co-taught classes with him at George Mason University’s law school. 

Hawley told reporters after the hearing that Thomas is “very enthusiastic” about Rao but declined to elaborate on the private conversation.

Hawley outlined his initial concerns about Rao in a column about judges who read or invent new “implied rights out of thin air.” Critics of Roe v. Wade, the 1973 decision that legalized abortion nationwide, say it was wrongly decided in part because there is no stated right to abortion in the Constitution.

But after meeting with Rao for nearly an hour, Hawley said before the vote Thursday that he was convinced that she would interpret the law according to its text and history and not be influenced by changing social and political times. That was similar to the message from Thomas during his call with Hawley. The justice told the senator that Rao does indeed have an originalist judicial philosophy, according to a person familiar with the conversation who was not authorized to speak publicly about it. 

It is unclear how unusual it is for a Supreme Court justice to intervene in the nomination process because such conversations would not necessarily be disclosed. Stephen Gillers, a judicial ethics expert at New York University’s law school, said the code of conduct allows judges to participate in the selection process, including responding to “official inquiries” concerning candidates.

The late justice Antonin Scalia reportedly lobbied David Axelrod, who was an adviser to President Barack Obama, to encourage his boss to nominate then-Solicitor General Elena Kagan to fill a vacancy on the high court, Axelrod recalled in a 2016 column.

During the committee meeting Thursday, Republican Sens. Ted Cruz (Tex.) and John Kennedy (La.) condemned the organized efforts to pressure Hawley. Cruz called the criticism from the Wall Street Journal “wrong, arrogant and misinformed,” and bristled at the idea that “people think they can pummel senators into keeping their mouth shut” for doing their jobs.

Still, other Republicans were privately frustrated that Hawley injected Rao’s personal views into a discussion about her fitness to serve on the bench. The senator told Axios earlier this week that he heard that Rao personally supports abortion rights — although he has since focused his concerns on how Rao would approach the legal principle of substantive due process. 

“What Josh was trying to do was to get to the judicial philosophy. I may have a different view of what a judge should do than him,” said Judicial Committee Chairman Lindsey O. Graham (R-S.C.). “But it can’t be about . . . you gotta be like me to be a judge. And to ask questions of people is a good thing about their judicial philosophy, but whether you go to church or you go to a different church doesn’t matter to me.”

The concerns from the GOP senators were somewhat surprising.

The American Bar Association rated Rao “well qualified,” and at her confirmation hearing in February, most Republicans defended and praised her record as a law professor, former Senate Judiciary Committee staff member and associate counsel to President George W. Bush.

“I must say, I’m a little bit confused about what I’m reading, to be frank,” Sen. Susan Collins (R-Maine) said Thursday of Rao’s nomination. “There are so many circuit court judges pending right now, but hers has been very confusing — on Roe v. Wade, where she is and she seems to be attacked by both sides.”

Collins, who supports abortion rights, added: “So maybe that means she will just follow precedent.” 

The caseload on the D.C. Circuit is heavy on disputes involving federal agencies and executive power. The court also has been a steppingstone to the Supreme Court, with four of the nine sitting justices having served on the D.C. Circuit.

In her law review articles, Rao expressed support for broad executive powers and for limiting the authority of independent federal agencies, seemingly in line with Kavanaugh. More recently, she has overseen the Trump administration’s efforts to roll back government regulations as head of the little-known but powerful Office of Information and Regulatory Affairs (OIRA). 

Collins, a moderate Republican, said she also will examine Rao’s record as the administration’s regulatory czar. Collins voted against Andrew Wheeler as the administrator of the Environmental Protection Agency, citing his advocacy of certain regulations at the EPA that Collins opposed. Rao, at the OIRA, would have signed off on those regulations. 

Trump’s pick for rules czar is expected to hand more power to the president

Earlier concerns about Rao’s record came primarily from Democrats and civil rights groups and centered on controversial columns she wrote as a student at Yale in the 1990s on topics including date rape and feminism. 

For instance, she wrote in 1994 that “it has always seemed self-evident to me that even if I drank a lot, I would still be responsible for my actions. A man who rapes a drunk girl should be prosecuted. At the same time, a good way to avoid a potential date rape is to stay reasonably sober.”

To address lawmakers’ concerns, Rao sent a letter to the committee in which she condemned “sexual assault in all forms” as “abhorrent” and stressed that she “particularly regret[s] the insensitivity demonstrated in my remarks on rape and sexual assault.”

She said that in college, she was “sheltered” and that her perspective on the issue evolved as she grew older and became a mother to two children. 

Robert Barnes and Magda Jean-Louis contributed to this report.

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