Today Senator Josh Hawley sent a letter to Neomi Rao outlining his questions about her judicial philosophy and approach to constitutional law. Senator Hawley has additional questions about Rao’s views on substantive due process – the doctrine that activist judges often rely on to justify making policy from the bench.

Senator Hawley and Neomi Rao are set to meet tomorrow, February 27, 2019.

Full text of the letter can be found below.

February 26, 2019

The Honorable Neomi Rao

Administrator

Office of Information and Regulatory Affairs

Office of Management and Budget

725 17th St. N.W.

Washington, D.C. 20503

Dear Ms. Rao:

I write to discuss your pending nomination to be a Circuit Judge on the U.S. Court of Appeals for the District of Columbia Circuit.

I take seriously the Senate’s role in giving advice and consent to the President’s nominations to the judiciary. Like President Trump, I am committed to confirming judges who will adhere to an original understanding of the Constitution.

As a member of the Senate Committee on the Judiciary, it is my responsibility to scrutinize every appellate court nominee’s approach to constitutional interpretation. That includes asking nominees about their understanding of the Fourteenth Amendment and substantive due process—the atextual doctrine that Supreme Court justices have invoked to strike down, among other things, state laws limiting abortion, and to justify judicial activism. 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.

I have reviewed your record as an attorney, as a professor, and as Administrator of the Office of Information and Regulatory Affairs. I have read through your academic writings. And we have had substantive discussions on these and other jurisprudential issues at your nominations hearing, through written questions, and in a private meeting in my office.

After this review, I continue to have questions about your judicial philosophy and approach to constitutional law. Namely, I have concerns about some statements in your academic writings: 

  • In your law review note, A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court, you wrote that “extra-legal sources can help judges to determine when a departure from past practice might be necessary—philosophy might be a vehicle for legal change.” I would like to discuss this observation and your approach to the use of outside sources in interpreting statutes and the Constitution.

  • In another article, Three Concepts of Dignity in Constitutional Law, you discuss how “American constitutional law has a long history of treating individual choice and autonomy as an integral and preeminent component of human worth.” I have concerns about your views on whether the Constitution confers substantive constitutional rights to dignity and whether those rights trump democratically passed laws.

  • Later in Three Concepts of Dignity in Constitutional Law, you state that “[t]he Casey plurality treated a woman’s right to choose an abortion as part of her constitutionally protected liberty, because her choice implicated both dignity and autonomy,” and that the plurality opinion “linked reproductive choices with the essential nature of the individual and emphasized the importance of the freedom to make such choices without compulsion from the state.” I have questions about your analysis of the Court’s decision in Casey, as well as in Lawrence v. Texas, Gonzales v. Carhart, and other constitutional cases discussed in that article.

I look forward to meeting and discussing these issues on Wednesday, February 27, prior to the Senate Judiciary Committee’s vote on your judicial nomination.

Thank you for your willingness to be considered for this important position on one of our nation’s most prominent courts of appeals and to participate in this nomination process.

                                                                        Sincerely,

 

                                                                                    Josh Hawley

                                                                                    U.S. Senator