[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.