A Conservative Judicial Star Faces a Right-Wing Litmus Test

(Bloomberg Businessweek) -- In less than a year and a half since being appointed to the federal appeals court in Washington, Judge Neomi Rao has consistently sided with the White House in politically charged cases, earning her a reputation as President Trump’s strongest supporter on the bench and fueling talk that he may name her to the Supreme Court if he gets the chance. Two of the nine justices on the high court, Neil Gorsuch and Brett Kavanaugh, were nominated by Trump. The health problems of Justice Ruth Bader Ginsburg have liberals worried about him possibly getting to pick a third.

If Rao were to get that nod, Democrats would be incensed. But her biggest obstacle may be emerging on the right.

Rao, 47, has been championed for years by the conservative legal movement, a network of activists at such groups as the Heritage Foundation and the Federalist Society that have long advised Republican presidents on judicial appointments and have helped Trump on his quest to appoint judges at a faster pace than his predecessors. Recently that movement has come under fire from social conservatives, who say it’s mainly delivered business-friendly judges who rule against unions and strike down regulations while failing right-wing voters who care more about restricting abortion, immigration, and LGBTQ rights. The dispute could fundamentally reshape the judicial selection process on the right, starting with a new list of potential Supreme Court nominees the president has promised to release next month.

In June social conservatives felt betrayed when Gorsuch wrote a majority opinion protecting gay and transgender employees from workplace discrimination. (Republican Senator Ted Cruz of Texas blasted the decision as “lawless.”) Their alarm increased as the court went on to block the White House from ending Obama-era protections for the undocumented immigrants known as Dreamers and allowed states to limit church services during the pandemic.

Senator Josh Hawley, a Missouri Republican, said in a floor speech in June that Gorsuch’s ruling marked “the end of the conservative legal movement.” He’d raised similar concerns last year when he questioned Rao’s social conservative bona fides before her appointment to the appeals bench.

It’s unclear how that disquiet will affect the president, who views his Supreme Court suggestions as a means of motivating voters before the election. Rao, who once spearheaded the administration’s deregulation agenda, has emerged as a favorite of business-minded conservatives, while religious conservatives have gravitated toward potential nominees such as Amy Coney Barrett, a devout Catholic whom Trump appointed to the federal appeals court in Chicago and who appeared on his previous Supreme Court shortlist. “You hear people talking about Team Amy vs. Team Neomi,” says Jonathan Adler, a conservative law professor at Case Western Reserve University who’s known Rao for more than 20 years. “There’s been some jockeying.”

The list remains in flux, with a range of conservative groups offering suggestions to the White House, which is also consulting with staff for Senate Majority Leader Mitch McConnell, according to people familiar with the process. Some organizations are lobbying for the choices to include conservative politicians whose views on social issues are firmly established, such as Republican Senators Mike Lee of Utah and Tom Cotton of Arkansas, as well as Hawley, one of the people said. A White House spokesman declined to comment.

Rao, who didn’t respond to a request for comment, has long been seen as an up-and-comer in conservative legal circles. As an undergraduate at Yale, she wrote caustic opinion pieces challenging liberal orthodoxy on race and gender issues. After earning her law degree at the University of Chicago, she clerked for Justice Clarence Thomas before joining the law faculty at George Mason University, where she helped lead the successful effort to have the law school renamed after the late Justice Antonin Scalia, an icon of the conservative legal movement.

She joined the U.S. Court of Appeals for the District of Columbia Circuit in 2019—taking the seat occupied by Kavanaugh before he joined the Supreme Court—after a stint in the White House heading a regulatory affairs office. She soon drew scorn from the left with a dissent from a ruling allowing House Democrats to subpoena Trump’s financial records, in which she said impeachment was the only context under which Congress can investigate accusations of illegal conduct by the president. In June she ordered a lower-court judge to dismiss the criminal charges against Trump’s former national security adviser Michael Flynn without investigating whether the U.S. Justice Department’s decision to drop the case was a political favor to the president.

Democrats and even some anti-Trump Republicans criticized her Flynn ruling, which is being reviewed by the appeals court’s full panel of judges, saying she violated judicial norms to please the president. “She’s dangerous,” says Christopher Kang, a founder of Demand Justice, a left-wing judicial advocacy group. “In the positions she takes and the language she employs, she’s going as far as she can to prove that she would be a loyal partisan on the bench.” Her Flynn decision would ensure a blistering confirmation hearing if she were nominated to the Supreme Court.

Still, Rao has influential backers. John Malcolm, a legal expert at the Heritage Foundation whose list of possible Supreme Court justices was largely adopted by Trump in 2016, says he will almost certainly include Rao if he compiles a similar one this summer. “She has the potential, given her rigorous analysis and clear intelligence, to become a leader on the court,” he says.

Rao is also friends with Leonard Leo, an architect of the conservative legal movement who helped secure the nominations of Gorsuch and Kavanaugh. In an interview, Leo declined to comment on the new White House list, but he defended the movement, pointing to significant rulings in support of religious groups. “Anyone who says that the judicial selection process is a failed conservative enterprise either doesn’t know the facts or is a snake oil merchant,” he says.

That may not be enough for social conservatives who are pushing Trump to impose litmus tests on court nominees. Although he ultimately voted to confirm her to the D.C. Circuit, Hawley raised questions about Rao’s commitment to overturning Roe v. Wade, pointing to past writings in which she had used the phrase “anti-abortion” rather than “pro-life,” the term preferred by anti-abortion activists. Hawley recently announced he would vote to confirm Supreme Court justices only if they agree that Roe v. Wade was wrongly decided.

Adam White, a professor at George Mason’s law school, where Rao used to teach, says he expects her to remain a force in conservative legal circles. But he acknowledges that the frustration of religious conservatives might continue to hurt her and other judges with slim or mixed track records on social issues. “The questions Hawley raised will surely be raised again,” he says.

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