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Neomi Rao

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Neomi Jehangir Rao (born March 22, 1973)[1] is an American jurist and legal scholar serving since 2019 as a U.S. circuit judge of the U.S. Court of Appeals for the District of Columbia Circuit. She was appointed by President Donald Trump, having served in the Trump Administration from 2017 to 2019 as Administrator of the Office of Information and Regulatory Affairs.[2] She was previously a professor of law at George Mason University's Antonin Scalia Law School.

Neomi Rao
Official portrait, 2018
Judge of the United States Court of Appeals for the District of Columbia Circuit
Incumbent
Assumed office
March 18, 2019
Appointed byDonald Trump
Preceded byBrett Kavanaugh
Administrator of the Office of Information and Regulatory Affairs
In office
July 18, 2017 – March 18, 2019
PresidentDonald Trump
Preceded byHoward Shelanski
Succeeded byPaul J. Ray
Personal details
Born
Neomi Jehangir Rao

(1973-03-22) March 22, 1973 (age 51)
Detroit, Michigan, U.S.
SpouseAlan Lefkowitz
EducationYale University (BA)
University of Chicago (JD)

Early life and education

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Rao was born on March 22, 1973, in Detroit, Michigan. Her parents, Zerin and Jehangir Narioshang Rao, were Parsi physicians from India who immigrated to the United States in 1972.[3] She grew up in Bloomfield Hills, Michigan, and attended Detroit Country Day School, graduating in 1991.[4]

After high school, Rao studied ethics, politics & economics, and philosophy at Yale University, graduating in 1995 with a Bachelor of Arts, cum laude. From 1995 to 1996, Rao was a reporter for The Weekly Standard. She then attended the University of Chicago Law School, where she was a comment editor of the University of Chicago Law Review and executive editor of a symposium issue of the Harvard Journal of Law and Public Policy. She graduated in 1999 with a Juris Doctor with highest honors and Order of the Coif membership.

Career

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After law school, Rao was a law clerk for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit from 1999 to 2000. She was legal counsel to the U.S. Senate Judiciary Committee from 2000 to 2001, then clerked for Justice Clarence Thomas of the U.S. Supreme Court from 2001 to 2002.[5]

In 2002, Rao entered private practice in London with the British law firm Clifford Chance, where she practiced public international law and arbitration. From 2005 to 2006, during the presidency of George W. Bush, Rao was an associate with the White House Counsel.[5] In 2006, she became a professor of law at the George Mason University School of Law (now Antonin Scalia Law School),[5] where she received tenure in 2012. In 2015, she founded the Center for the Study of the Administrative State.[6][5][7]

She is a member of the Administrative Conference of the United States and the governing council of the American Bar Association's Section of Administrative Law and Regulatory Practice, where she co-chairs the section's regulatory policy committee.[2][8] She is a member of the Federalist Society.[9]

Office of Information and Regulatory Affairs

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On April 7, 2017, President Donald Trump nominated Rao to become the administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget. Former OIRA Administrator Susan Dudley, who served under President George W. Bush, described Rao as "an excellent choice to lead OIRA...In addition to a sharp legal mind, she brings an openness to different perspectives and an ability to manage the competing demands of regulatory policy."[10]

 
Rao (far left) at a National Space Council meeting in 2018

Legal commentator and law professor Jonathan H. Adler wrote that "Trump's selection of Rao suggests the administration is serious about regulatory reform, not merely reducing high-profile regulatory burdens."[2] Opposition to Rao came from groups such as the League of Conservation Voters (LCV), who said she has "led efforts to roll back fundamental environmental protections" and has "misuse[d] the regulatory review process for partisan political purposes."[11] Rao was confirmed to the position by the United States Senate on July 10, 2017.[12]

Federal judicial service

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Nomination and confirmation

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On November 13, 2018, Trump announced that he would nominate Rao to the vacancy on the U.S. Court of Appeals for the D.C. Circuit created by Judge Brett Kavanaugh's elevation to the Supreme Court of the United States.[13] Her nomination was sent to the Senate later that day.[14] On January 3, 2019, her nomination was returned to the president under Rule XXXI, Paragraph 6, of the United States Senate. On January 23, 2019, Trump announced his intent to renominate Rao for a federal judgeship.[15] Her nomination was sent to the Senate later that day.[16]

Rao's nomination attracted opposition due to articles that she wrote on race, sexual assault, feminism, and individuals with disabilities.[17]

In a 1994 article in the Yale Herald, Rao wrote: "Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink. And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice."[18]

Rao was criticized by disability rights activists such as Rebecca Cokley for a 2011 law review article[19] and a blog post where then-Law Professor Rao expressed opposition to bans on dwarf-tossing.[20]

A hearing on her nomination before the Senate Judiciary Committee was held on February 5, 2019. Rao was asked by several Senators about her college writings, some of which they viewed as sexual assault victim blaming. Rao responded, "A victim of a horrible crime is not to blame and the person who commits those crimes should be held responsible."[21]

Democrats expressed concern that rules Rao worked to repeal in her role as administrator of the White House Office of Information and Regulatory Affairs could face legal challenges and wind up before the D.C. Circuit Court of Appeals, which is considered the second most powerful appeals court. Rao said she would "look carefully at the standards for recusal, consult with her colleagues and follow the precedent and practices of the D.C. Circuit."[21] Republican Senator Josh Hawley questioned whether she was sufficiently socially conservative regarding abortion rights but ultimately voted for her confirmation.[22] On February 28, 2019, her nomination was reported out of committee by a 12–10 vote.[23] On March 12, 2019, the Senate invoked cloture on her nomination by a 53–46 vote.[24] On March 13, 2019, Rao was confirmed by a 53–46 vote.[25] She received her judicial commission on March 18, 2019.[26]

Notable opinions

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  • In an October 11, 2019, opinion of a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, Rao was the dissenter in a 2–1 ruling to affirm a district court ruling supporting a congressional subpoena for President Trump's records from the accounting firm Mazars.[27] She wrote in her opinion that "allegations of illegal conduct against the president cannot be investigated by Congress except through impeachment."[28]
  • Rao participated in the May 2020 appeal of Judge Emmet G. Sullivan's actions appointing amicus curiae in response to the Department of Justice moving to dismiss charges in United States v. Flynn. The Appeals Court initially ordered Judge Sullivan to file a response regarding the appeal within 10 days.[29][30][31] On June 24, 2020, Rao wrote the 2–1 decision to dismiss the conviction of Flynn, joined by Judge Karen Henderson and with the dissent from Judge Robert Wilkins.[32] Observers were surprised because Henderson had expressed skepticism over the government's position during the hearing.[33] "I don't see why we don't observe regular order and allow him to rule," Henderson said.[33] Flynn's lawyer, Sidney Powell, argued there was no longer any case or controversy, and the trial judge must dismiss the case against Flynn, at the request of the Trump Justice Department. After vacating the Rao decision, the full court heard the case on August 11, with many of the judges expressing skepticism about upholding the ruling.[34][35] On August 31, 2020, the appeals court en banc ruled 8–2 in favor of denying the writ of mandamus, and not reassigning the case to a different district court judge, and remanded the case to Sullivan, with Judge Rao writing in dissent, joined by Henderson.[36][37]
  • In August 2023, Rao penned the decision in Frederick Douglass Foundation, Inc. v. DC, No. 21-7108 (D.C. Cir. 2023) overturning's Judge James Boasberg's dismissal of a lawsuit against the District of Columbia and holding that the First Amendment prohibits government discrimination on the basis of viewpoint and that the protection for freedom of speech applies not only to legislation, but also to enforcement of the laws. The Frederick Douglas Foundation had filed suit following the arrest of two of its members for defacing government property by writing on the sidewalk in chalk without first obtaining a permit from the City. The Foundation claimed viewpoint discrimination because the City had routinely ignored unpermitted chalk and paint by other protest groups but chose to enforce against the Frederick Douglas Foundation members when they wrote pro-life messages. Writing for the court, Judge Rao stated: “The government may not enforce the laws in a manner that picks winners and losers in public debates. It would undermine the First Amendment’s protections for free speech if the government could enact a content-neutral law and then discriminate against disfavored viewpoints under the cover of prosecutorial discretion. Neutral regulations may reasonably limit the time, place, and manner of speech, but such regulations cannot be enforced based on the content or viewpoint of speech.”[38][39]

Criticisms

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Rao was the subject of a 2023 Georgetown Law Journal article called "Americana Administrative Law."[40] The author of that article argued that Rao's contributions to the administrative law field have been built on a declinist vision of Congress. The author suggests that Rao's "Americana Administrative Law" is a pitch for an aggrandized judiciary that can protect Congress from its own systemic decline.

Personal life

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Rao is married to Alan Lefkowitz, a former law school classmate,[41] with whom she has two children.[42] After marrying her husband, Rao converted to Judaism, however she still identifies as a Zoroastrian.[43][44][45]

Selected scholarly works

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  • Rao, Neomi (2008). "On the Use and Abuse of Dignity in Constitutional Law". Columbia Journal of European Law. 14 (2): 201–55.
  • — (2011). "Three Concepts of Dignity in Constitutional Law". Notre Dame Law Review. 86 (1): 183–271.
  • — (2011). "Public Choice and International Law: The Executive Branch Is a 'They,' Not an 'It'" (PDF). Minnesota Law Review. 96 (1): 194–277.
  • — (2014). "Removal: Necessary and Sufficient for Presidential Control" (PDF). Alabama Law Review. 65 (5): 1205–76.
  • — (2015). "Administrative Collusion: How Delegation Diminishes the Collective Congress" (PDF). New York University Law Review. 90 (5): 1463–1526.
  • — (2018). "Why Congress Matters: The Collective Congress in the Structural Constitution". Florida Law Review. 70 (1): 1–80.
  • — (2021). "The Hedgehog and the Fox in Administrative Law". Daedalus. 150 (3): 220–41. doi:10.1162/daed_a_01869. JSTOR 48616703.

See also

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References

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  1. ^ Voruganti, Harsh (February 11, 2019). "Neomi Rao – Nominee to the U.S. Court of Appeals for the D.C. Circuit". VettingRoom.org. Retrieved October 18, 2019.
  2. ^ a b c Adler, Jonathan (April 7, 2017). "White House names Neomi Rao as next 'regulatory czar'". The Washington Post. Retrieved May 18, 2017.
  3. ^ "Neomi Rao To Lead OIRA In US". Parsi Times. Retrieved June 16, 2018.
  4. ^ "Alumni Class Notes" (PDF). Bee Hive, for Alumni, Friends and Family of Detroit Country Day School (Winter): 39. 2005. Retrieved November 15, 2017.
  5. ^ a b c d Eder, Steve (July 9, 2017). "Neomi Rao, the Scholar Who Will Help Lead Trump's Regulatory Overhaul". The New York Times. ISSN 0362-4331. Retrieved November 15, 2017.
  6. ^ Mufson, Steven (April 20, 2017). "Pick for rules czar would hand more power to Trump". Washington Post. washingtonpost.com. Retrieved 10 July 2017.
  7. ^ Waddell, Melanie (April 11, 2017). "Scalia Law's Neomi Rao Picked for Trump Regulatory Chief". National Law Journal. Retrieved May 18, 2017.
  8. ^ "Indian-American Neomi Rao nominated as Trump's regulatory czar". Deccan Chronicle. April 8, 2017. Retrieved May 18, 2017.
  9. ^ McDonald, Laughlin; Dudley, Susan E. (April 12, 2017). "President nominates Neomi Rao to head OIRA". Retrieved October 17, 2018.
  10. ^ Devaney, Tim (April 7, 2017). "Trump nominates regulatory chief". The Hill. Retrieved May 18, 2017.
  11. ^ "Re: Oppose the judicial nomination of Neomi Rao to the United States Court of Appeals for the D.C. Circuit". League of Conservation Voters. Retrieved October 23, 2021.
  12. ^ Siegel, Josh (July 10, 2017). "Senate confirms Neomi Rao to lead White House office overseeing regulations". Washington Examiner. Retrieved August 9, 2017.
  13. ^ Gray, Noah (November 13, 2018). "Trump nominates Neomi Rao to replace Kavanaugh on DC Circuit". CNN. Retrieved November 13, 2018.
  14. ^ "Two Nominations Sent to the Senate". whitehouse.gov. Retrieved November 16, 2018 – via National Archives.
  15. ^ "President Donald J. Trump Announces Intent to Nominate Judicial Nominees". whitehouse.gov – via National Archives.
  16. ^ "Nominations Sent to the Senate". whitehouse.gov – via National Archives.
  17. ^ Cassesn Weiss, Debra (January 16, 2019). "DC Circuit nominee under fire for college writings on race, feminism, date rape". ABA Journal. Retrieved October 7, 2019.
  18. ^ https://s3.documentcloud.org/documents/5684161/10-14-94-Rao-Shades-of-Gray.pdf [bare URL PDF]
  19. ^ "Three Concepts of Dignity in Constitutional Law". May 11, 2011. SSRN 1838597.
  20. ^ Nover, Scott (January 22, 2019). "How a Trump judicial nominee reignited the debate over dwarf tossing". Washington Post.
  21. ^ a b Homan, Timothy R. (February 5, 2019). "Trump's pick for Kavanaugh's old court seat grilled over date-rape comments". The Hill. Retrieved February 6, 2019.
  22. ^ Karni, Annie; Haberman, Maggie (February 26, 2019). "Senator Josh Hawley Raises Questions About Neomi Rao's Abortion Stance". The New York Times.
  23. ^ "Results of Executive Business Meeting – February 28, 2019, Senate Judiciary Committee" (PDF).
  24. ^ "U.S. Senate: U.S. Senate Roll Call Votes 116th Congress - 1st Session". www.senate.gov. Retrieved March 16, 2024.
  25. ^ "U.S. Senate: U.S. Senate Roll Call Votes 116th Congress - 1st Session". www.senate.gov. Retrieved March 16, 2024.
  26. ^ Neomi Rao at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.
  27. ^ Shuham, Matt (October 11, 2019). "Appeals Court Upholds House Subpoena Of Trump Financial Records". Talking Points Memo. Retrieved October 11, 2019.
  28. ^ Liptak, Adam (November 18, 2019). "Chief Justice Gives Trump Temporary Reprieve in Financial Records Case". The New York Times. Retrieved November 18, 2019.
  29. ^ "USCA ORDER as to MICHAEL T. FLYNN re: Emergency Petition for a Writ of Mandamus" (PDF). D.C. Circuit Court of Appeals. May 21, 2020.
  30. ^ "DC Circuit Court Of Appeals Order" (PDF). May 21, 2020.
  31. ^ "DC Circuit Court Of Appeals Opinions" (PDF). June 24, 2020.
  32. ^ Polantz, Katelyn and Marshall Cohen, "Appeals court orders judge to dismiss Michael Flynn case", CNN, June 24, 2020.
  33. ^ a b DC Circuit Didn't Sound Eager to Force Dismissal of Case Against Michael Flynn, National Law Journal, C. Ryan Barber, June 12, 2020. Retrieved August 3, 2020.
  34. ^ "Federal appeals court skeptical of Michael Flynn's effort to immediately dismiss criminal charge". POLITICO. August 11, 2020.
  35. ^ Wolfe, Jan (August 11, 2020). "Judges appear reluctant to immediately end case against Trump ex-aide Flynn". Reuters – via www.reuters.com.
  36. ^ "READ: Appeals court ruling in Michael Flynn case". CNN. August 31, 2020. Retrieved September 19, 2020.
  37. ^ Marimow, Ann E.; Hsu, Spencer S. "Michael Flynn case does not have to be immediately dismissed, appeals court rules". Retrieved September 19, 2020 – via www.washingtonpost.com.
  38. ^ "Frederick Douglass Foundation, Inc. v. DC, No. 21-7108 (D.C. Cir. 2023)". Justia Law. Retrieved August 17, 2023.
  39. ^ Board, The Editorial (August 16, 2023). "Opinion | Progressives for Speech Discrimination". Wall Street Journal. ISSN 0099-9660. Retrieved August 17, 2023.
  40. ^ Beau J. Baumann, Americana Administrative Law, 111 Geo. L.J. 465 (2023) https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2023/04/Baumann-Final-PDF.pdf
  41. ^ "Neomi Rao, '99: Serving the Public from the Executive Branch to the Bench | University of Chicago Law School". www.law.uchicago.edu. October 23, 2020. Retrieved October 23, 2021.
  42. ^ "Hearing on the Nomination of Neomi Rao to be the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, Statement of Neomi Rao" (PDF). United States Senate Homeland Security and Government Affairs Committee. June 7, 2017. Retrieved November 15, 2017.
  43. ^ Kampeas, Ron (March 14, 2019). "Senate confirms Jewish nominee to DC court after abortion views hiccup". Jewish Standard. Retrieved July 31, 2019.
  44. ^ Johnson, Scott (February 7, 2019). "Booker's row with Rao". Power Line. Retrieved June 24, 2020.
  45. ^ "The Row over Rao". February 28, 2019.
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Political offices
Preceded by Administrator of the Office of Information and Regulatory Affairs
2017–2019 		Succeeded by
Legal offices
Preceded by Judge of the United States Court of Appeals for the District of Columbia Circuit
2019–present 		Incumbent
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