Before sexual-misconduct allegations transformed Brett Kavanaugh’s confirmation hearings into a nationally televised spectacle, Democrats focused on the Supreme Court nominee’s expansive view of presidential power. His single most controversial article suggested that sitting presidents should be immune from civil lawsuits, criminal investigation, or prosecution.
Before taking his seat on the highest court, Kavanaugh spent about a decade as a judge on the U.S. Court of Appeals for the D.C. Circuit, often called “the little Supreme Court” because it handles crucial cases related to federal agencies and because many of its members get elevated to the real Supreme Court. Now President Donald Trump has picked a nominee to replace Kavanaugh on the second-most-powerful court in the land—and her view of presidential power appears equally expansive.
Neomi Rao, a conservative legal scholar currently serving as Trump’s “regulations czar,” has served in all three branches of the federal government, from the Supreme Court where she clerked for Justice Clarence Thomas, to the Senate Judiciary Committee, to George W. Bush’s White House. For conservatives concerned about red tape and unaccountable bureaucracy, she is a godsend. For liberals fearful of presidential power grabs or politics trumping policy in federal agencies, she is a nightmare.
Supporters will tout her varied experience as an asset, and current D.C. Circuit judges might cheer her special expertise in the nitty-gritty regulatory issues that come to the circuit, the University of Richmond judiciary scholar Carl Tobias told The Atlantic. Liberals will shudder at her active role in the conservative Federalist Society, where she’s spoken at more than two dozen events in the past decade, and her founding of an academic center at the libertarian-leaning George Mason University supported by a multimillion-dollar donation from the libertarian billionaire Charles Koch.
If confirmed, she would be the first Indian American woman to serve on the appeals court. (She has said that her parents, both doctors, emigrated from India in January 1972 and landed in the middle of a Michigan snowstorm.) Trump made a surprise announcement of her nomination recently at a White House ceremony recognizing Diwali, the Hindu festival of lights. “She is going to be fantastic. Great person,” he said.
She joined the three dozen judicial nominees awaiting Senate confirmation but now held up by Jeff Flake, the outgoing Arizona Republican, who’s promised to use his Senate Judiciary Committee post to block all nominees until the Senate votes on a bill protecting Special Counsel Robert Mueller. Confirming conservative judges for lifetime federal appointments has been a top priority for Majority Leader Mitch McConnell. Even if Flake persists, he will leave office in January, and a slightly expanded GOP majority could proceed apace. Thanks to a 2013 Democratic decision dubbed the “nuclear option,” judicial nominations need only a simple majority of 51 votes for confirmation, rather than the 60-vote supermajority required during the previous four decades.
Rao appears to be a “no” on the question of whether a sitting president can face criminal prosecution, a question of keen interest for Democrats watching the Russia investigation. In a 2009 law-review article on the limits of presidential power, she wrote, “After removal from office, a President may be criminally liable for his actions.”
In addition, Rao would be joining the appeals court likely to hear any constitutional challenge to Mueller’s investigation, says William Araiza, a Brooklyn Law School professor and former clerk for Supreme Court Justice David Souter. Trump might be cheered by her expansive view of presidential power. Araiza says she appears to be a “hard-liner” in favor of the unitary executive theory, a perspective advanced during the Bush presidency that would put many presidential actions beyond the oversight of Congress and the courts.
Less splashy but more certain to have consequences is Rao’s view of federal regulations and the president’s authority over independent agencies. In a speech this year at the Heritage Foundation, a conservative Washington think tank, she laid out her vision of a “much smaller and more effective regulatory state.” “Elections should truly have consequences for administration; otherwise, we will have an unconstitutional fourth branch of government,” she said, voicing the conservative fear of an unaccountable bureaucracy burdening citizens and companies with too many rules and regulations.