Republican Missouri Sen. Josh Hawley’s Monday comment that President Donald Trump’s nominee to a high-profile appeals court doesn’t have a clear anti-abortion record is meeting swift pushback from conservatives.
Hawley on Monday told KFTK 97.1 FM Newstalk’s Marc Cox that he hasn’t yet made up his mind about D.C.-area U.S. Circuit Court of Appeals nominee Neomi Rao. He said he wants to make sure she’s anti-abortion, and “it’s as simple as that.”
Trump named Rao to replace Brett Kavanaugh after he left the influential appeals court to join the U.S. Supreme Court.
“I’ve got some concerns about Neomi Rao,” Hawley said. “She does not have a strong record on life. She’s written some things in the past that suggest to me that she might be more of a judicial activist in this area and not somebody who respects life.”
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Rao, who currently serves as administrator of the White House Office of Information and Regulatory Affairs, worked in the George W. Bush White House but has never tried a case in state or federal court. Without a court record to review, Hawley and other members of the Senate Judiciary Committee are instead relying on her past writings.
In one law article cited by NARAL Pro-Choice America, which lists Rao as one of “Trump’s anti-choice judicial nominees,” Rao wrote against the citation of Greek philosophers in the U.S. Supreme Court’s Roe v. Wade abortion ruling.
“By contrast, there were many persuasive legal arguments against recognizing a constitutional right to abortion,” Rao wrote. “For instance, substantive due process arguably has no textual support in the Fourteenth Amendment Due Process Clause.”
Ed Whalen, president of the Judeo-Christian group Ethics and Public Policy Center, wrote in an opinion piece for the National Review online that he’s not clear on Rao’s past or current positions on abortion. But he said she has “outstanding qualifications” and questioned Hawley’s standards.
“How many of the thirty federal courts of appeals judges that President Trump appointed over the past two years had an actual ‘strong record on life,’ as Hawley defines the concept?” Whalen wrote. “It seems to me far from clear that Chief Justice Roberts (for whom Hawley clerked) had such a record when he was appointed to the Court. Ditto for Justice Thomas, Justice Alito (some pro-lifers expressed concerns about his record), and Justice Gorsuch and Justice Kavanaugh (both of whose nominations Hawley strongly supported).”
Hawley’s lukewarm response to Rao comes after he spent much of his Senate campaign fiercely criticizing former Democratic Sen. Claire McCaskill for voting against Kavanaugh’s confirmation. Hawley unseated McCaskill in November.
Conservative groups are seizing on the parallel.
“Sadly, barely a month after moving to Washington, Josh Hawley is already acting like Claire McCaskill when it comes to judges,” Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, said in a statement. “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.”
The Judicial Crisis Network, a conservative advocacy group that backed Kavanaugh’s nomination, on Monday announced plans to spend $500,000 on television, radio and digital ads in Missouri to push Hawley to support Rao. Americans for Prosperity also is launching digital ads urging support for Rao.
Hawley spokeswoman Kelli Ford said in a statement that the senator “is single-minded and focused only on representing the commonsense conservative voters of Missouri.
“No threat from any group in Washington on either side of the aisle matters to him,” she said.
Rao has also faced criticism — from liberal activists, some Democrats and even Iowa Republican Sen. Joni Ernst — for language she used as a college student in writing about sexual assault, race and equal rights for women.
Rao has since backed off, telling the Senate Judiciary Committee earlier this month that writings in which she criticized affirmative action and suggested that intoxicated women were partly responsible for date rape do not reflect her current thinking