[Congressional Record Volume 165, Number 45 (Wednesday, March 13, 2019)]
[Senate]
[Pages S1810-S1811]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Judicial Nominations
Ms. HIRONO. Mr. President, two weeks ago, the Senate broke a century
of precedent and confirmed a judge, Eric Miller, to the Ninth Circuit
over the objection of both home State Senators.
Last week, the majority leader filed cloture on two circuit court
nominees, Paul Matey for the Third Circuit and Neomi Rao to replace
Brett Kavanaugh in the DC Circuit.
Yesterday, Paul Matey became the second person in Senate history,
after Eric Miller, to be confirmed without blue slips from both home
State Senators. By eliminating the blue slip--a century-old policy that
requires meaningful consultation between the President and home State
Senators on judicial nominations--Senate Republicans have been able to
speed through confirming partisan judges with strong ideological
perspectives and agendas.
Donald Trump appointed 30 circuit court judges in his first 2 years
in office. That is 17 percent of the Federal appellate bench. By
contrast, President Obama appointed only 16 circuit court judges in his
first 2 years in office, and President George Bush appointed 17.
Donald Trump and the majority leader, with the help of the chair of
the Judiciary Committee, are breaking nearly every rule that stands in
their way to stack, at breakneck speed, the Federal courts with deeply
partisan and ideological judges.
And why are they doing this? They are packing the courts to achieve,
through the courts, what they haven't been able to accomplish through
legislation or executive action--undermining Roe v. Wade, dismantling
the Affordable Care Act, eliminating protections for workers, women,
minorities, LGBTQ individuals, immigrants, and the environment.
The courts, with non-Trump judges, have been the constitutional
guardrails stopping the Trump administration's deeply questionable
policies and decisions, such as separating immigrant children from
their parents, summarily ending DACA protections, and asking whether
census respondents are U.S. citizens. All of these administration
decisions have been stopped, for now, by Federal judges.
Trump's judicial nominees have extensive records of advocating for
rightwing, ideologically-driven causes. In fact, these records are the
reasons they are being nominated in the first place.
The nominees tell us to ignore their records and trust them when they
say they will follow precedent and rule impartially, but after they are
confirmed as judges, they can ignore promises made under oath during
their confirmation hearing because they can. Short of impeaching these
judges, there is nothing we can do about it--great for them, not great
for Americans.
By the way, the average Trump judge tends to be younger, less
diverse, and less experienced. They will be making rules that affect
our lives for decades.
This week we are considering yet another Trump nominee, Neomi Rao,
who should make us seriously ask how far the majority leader is willing
to go to let Donald Trump pack the courts with extreme nominees and
undermine the independence and impartiality of the Federal judiciary.
Neomi Rao is a nominee who has not only expressed offensive and
controversial views in her twenties, but she has also continued to make
concerning statements as a law professor. Her recent actions as Donald
Trump's Administrator of the Office of Information and Regulatory
Affairs, OIRA, have shown that her controversial statements in her
twenties cannot be ignored as merely youthful indiscretions.
At the hearing, I asked her why, as a law professor, she defended
dwarf-tossing by arguing that a ban on dwarf-tossing ``coerces
individuals'' to accept a societal view of dignity that negates the
dignity of an individual's choice to be tossed.
Does she seriously believe that dwarfs who are tossed do not share a
societal view of dignity that being tossed is an affront to human
dignity?
Ms. Rao asserted that she was only talking about a particular case
and not taking a position one way or another on these issues. It is
hard to understand what distinction she is making, but describing a ban
on dwarf-tossing as not coercion is bizarre, especially coming from
someone who purports to worry about the dignitary harm caused by
affirmative action or diversity in education programs.
[[Page S1811]]
When I asked her about the strong ideological perspectives reflected
in her writings and public statements, she claimed that she ``come[s]
here to this committee with no agenda and no ideology and [she] would
strive, if [she] were confirmed, to follow the law in every case.''
Ms. Rao would have us ignore all of her controversial statements and
positions and simply trust her blanket assertion that she has no agenda
or ideology. In this, she is like the other Trump judicial nominees.
As a college student, Ms. Rao criticized environmental student groups
for focusing on ``three major environmental boogymen, the greenhouse
effect, the depleting ozone layer, and the dangers of acid rain . . .
though all three theories have come under serious scientific attack.''
More than two decades later, Ms. Rao demonstrated the same disregard
for environmental concerns as the Administrator of the Office of
Information and Regulatory Affairs, OIRA. In this position she has
consistently used her power and influence to strip away critical
protections for clean air and clean water. For example, Ms. Rao
supported efforts to replace the Clean Power Plan, which would have
reduced greenhouse gas emissions with a rule that would actually
increase air pollution and could lead to up to 1,400 additional
premature deaths.
Her claim that she would simply follow precedent is also contradicted
by her statements and positions relating to racial injustice. In her
twenties, while discussing the Yale Women's Center and what she called
``cultural awareness groups,'' she argued that ``[m]yths of sexual and
racial oppression propogate [sic] themselves, create hysteria and
finally lead to the formation of some whining new group.''
I just wonder, what are these whining new groups that she refers to?
Could it be women who want to support programs that support women?
In 2015, as a law professor, she disparagingly described the Supreme
Court case that reaffirmed the Fair Housing Act's protections against
disparate impact discrimination as a ``rul[ing] by talking points,''
not law.
In Texas Department of Housing v. Inclusive Communities Project, the
Supreme Court recognized that the disparate impact doctrine is an
important way ``to counteract unconscious prejudices and disguised
animus'' based on a policy's discriminatory effects. Despite the
Supreme Court precedent, when Ms. Rao became the OIRA Administrator,
she began working to weaken rules protecting against disparate impact
discrimination--upheld by the Supreme Court, by the way--particularly
in the area of housing.
Her writings and actions related to sexual assault and rape are
another reason we should be hesitant to believe her claim that she will
merely follow the law free of her strongly held ideological views. In
her twenties, Ms. Rao repeatedly wrote offensive statements about date
rape and sexual assault that disparaged survivors. In writing about
date rape, she argued that if a woman ``drinks to the point where she
can no longer choose, well, getting to that point was part of her
choice.''
In criticizing the feminist movement, she asserted she was ``not
arguing that date rape victims ask for it'' but then argued that ``when
playing the modern dating game, women have to understand and accept the
consequences of their sexuality.''
At her hearing and in a subsequent letter to this Committee, Ms. Rao
tried to walk away from these offensive writings, stating that she
``regret[s]'' some of them and believes ``[v]ictims should not be
blamed.'' But at the hearing she continued to insist that her prior
controversial statements were ``only trying to make the commonsense
observation about the relationship between drinking and becoming a
victim.'' That is not how her statements came across.
She seems to acknowledge that by further claiming that if she were
addressing campus sexual assault and rape now, she ``would have more
empathy and perspective.'' That claim rings hollow, as she only
recently oversaw the Trump administration's proposed title IX rule that
would make it harder for college sexual assault survivors to come
forward and obtain justice.
Among other things, the proposed rule would require schools to
conduct a live hearing where the accused's representatives can cross-
examine the survivor. It would also have the school use a higher burden
of proof for sexual misconduct cases than for other misconduct cases.
I will close by noting that Ms. Rao previously criticized the Senate
Judiciary Committee's confirmation hearings for judicial nominees. In
writing about the Supreme Court confirmation process, she complained
that nominees are ``coached to choose from certain stock answers,''
such as ``repeatedly alleg[ing] fidelity to the law.''
Back then she readily acknowledged that ``judges draw on a variety of
tools in interpreting the law, and that these tools differ for judges
based on their constitutional values.'' But now that she has been
nominated to become a judge, she is the one giving the Judiciary
Committee the formulaic ``stock answers'' that she criticized.
Before she became a judicial nominee, she indicated that nominees
should not be confirmed ``based on incantations of the right formulas
without an examination of their actual beliefs.'' We should hold her to
her own words.
An examination of Ms. Rao's record and actual beliefs show that the
controversial views she held in her twenties are not so different from
her statements and actions as a legal professional. That is why I will
be voting against Ms. Rao's nomination, and I strongly urge my
colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER. The majority whip.